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T.N. v. Covington County Department of Human Resources

Alabama Court of Civil Appeals

July 26, 2019

T.N. n/k/a T.N.G.

         Rehearing Denied September 20, 2019.

         Appeals from Covington Juvenile Court (JU-13-185.02, JU-13-186.02, JU-13-187.02, JU-13-188.02)

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          Anne C. Christensen of Christensen & Christensen, Andalusia, for appellant.

          Steve Marshall, atty. gen., and Felicia M. Brooks, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.

         EDWARDS, Judge.

         T.N., now known as T.N.G. ("the mother"), appeals from a judgment terminating her parental rights to her children, R.A., C.A., L.N., and S.N. ("the children").[1] The children have been in foster care since their removal from the custody of the mother in December 2013 by the Covington County Department of Human Resources ("DHR"). In June 2016, DHR filed in the Covington Juvenile Court petitions to terminate the mother's parental rights to the children; those cases were assigned numbers JU-13-185.02, JU-13-186.02, JU-13-187.02, and JU-13-188.02, respectively.[2] After a lengthy trial held over eight separate days between November 2016 and October 2017, the juvenile court, on August 31, 2018, entered in each case a judgment terminating the mother's parental rights.[3] The mother timely appealed; her appeals were assigned numbers 2180047, 2180048, 2180049, and 2180050, respectively.

"A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990)."

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App. 2004). A juvenile court's factual findings in a judgment terminating parental rights based on evidence presented ore tenus are presumed correct. K.P. v. Etowah Cty. Dep't of Human Res., 43 So.3d 602, 605 (Ala.Civ.App. 2010). A juvenile court's judgment terminating parental rights must be supported by clear and convincing evidence. P.S. v. Jefferson Cty. Dep't of Human Res., 143 So.3d 792, 795 (Ala.Civ.App. 2013). "Clear and convincing evidence" 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.'" L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App. 2002) (quoting Ala. Code 1975, § 6-11-20(b)(4)).

         The termination of parental rights is governed by Ala. Code 1975, § 12-15-319. That statute reads, in pertinent part:

"(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parent[ ] of a child [is] unable or unwilling to discharge [his or her] responsibilities to and for the child, or that the conduct or condition of the parent[ ] renders [him or her] unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parent[ ]. In determining whether or not the parent[ ] [is]

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unable or unwilling to discharge [his or her] responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:


"(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for needs of the child.


"(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parent[ ] have failed.


"(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review."

         The facts revealed by the record are as follows. The mother first became known to DHR in June 2013.[4] The initial triggering event precipitating DHR's involvement was the placement of the two older children, R.A. and C.A. (hereinafter referred to collectively as "the older children"), who were at the time almost eight years old and almost seven years old, respectively, in acute care at Laurel Oaks Behavioral Health Center ("Laurel Oaks"). At that time, according to Natalie Pinson, who was the foster-care caseworker first assigned to the family's case, the children were reporting hallucinations and were observed to be wearing clothing with holes and shoes that were falling apart. DHR opened the case to supervision in June 2013 and began providing the mother services aimed at preventing the removal of the children from the home.

         According to Pinson, the children's behavior was "chaotic." She said that they were jumping off of the furniture and that it was "wild" in the home. Pinson testified that the mother would sometimes yell and scream at the children but that, at other times, she might take a calming tone, commenting that "you know you shouldn't be doing that." The mother's lack of consistency in her approach to discipline, Pinson noted, did not serve to calm the children. Pinson also observed that the mother had a significant attachment with C.A., whom she would address in a "baby voice"; Pinson further noted that C.A. constantly wanted the mother's attention. Pinson indicated that the mother had less of an attachment with R.A., who, Pinson noted, sought the mother's attention but was seldom given it.

         Pinson further testified that hygiene was also an issue. She said that the school the older children attended had reported that the children had an awful odor, that the children's underwear would be filthy, that the children would complain that their "hineys" hurt, and that the children suffered issues with lice. Pinson said that her investigation into the conditions of the home indicated that the children would wet the

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bed frequently and that the mother did not apparently know about the bedwetting, resulting in the children's repeatedly sleeping on filthy sheets and mattresses.

         Pinson testified that the mother had moved five times during Pinson's tenure as caseworker for the family, which lasted approximately one year, between December 2013 and December 2014. Pinson said that the mother would often blame her decision to relocate on something her landlord had not done. However, Pinson learned that the mother had, at times, fallen behind on her rent; thus, she indicated that the mother may have moved at times to avoid eviction.

         During the period Pinson had the case, the mother had had relationships of some sort with two men, M.E. and C.G., who did not get along. The mother was in a romantic relationship with M.E., who she later married for a brief time. M.E. broke R.A.'s finger while disciplining her, so DHR implemented a safety plan under which M.E. could not be in the home. However, Pinson said, she believed that the mother and M.E. had repeatedly violated the safety plan based on comments made by the children. Pinson said that she had attempted to "catch" M.E. at the home, but, she said, he had once escaped through a window and, another time, had hid in the attic; she remarked that the children found those episodes "funny." The mother later divorced M.E. and subsequently married C.G.

         As part of its duty to provide services to the mother, DHR required the mother to undergo a psychological evaluation with Dr. Curry Hammack in November 2013 and again in January 2016. Dr. Hammack's psychological reports were admitted at trial, and he testified regarding his findings relating to the mother's mental health. Dr. Hammack testified that, during his 2013 evaluation of the mother, he gave the mother a battery of tests and spoke with her about her past and current situations. According to Dr. Hammack, the 2013 testing had revealed that the mother's IQ is in the low average range and that she suffers from depression and anxiety. He noted that his 2013 evaluation included the Minnesota Multiphasic Personality Inventory ("MMPI"), which revealed that the mother had low self-esteem, would tend to get agitated and frustrated, and would become overwhelmed as her stress levels increased. He said that the mother had explained that she had been adopted and that she had a long history of "emotional volatility." Dr. Hammack testified that the mother had admitted being hospitalized as a teenager at Laurel Oaks and as a young adult in Bryce Mental Hospital; he said that she also admitted having been diagnosed as suffering from bipolar disorder. Dr. Hammack noted that the mother had explained that three of her four children had behavioral issues.

         Based on his 2013 testing and observations of the mother, Dr. Hammack concluded that the mother suffered from an anxiety or mood disorder and from personality disorder with primary borderline features, dependent features, and somatic features. He commented that he had seen evidence indicating that the mother might, in fact, suffer from bipolar disorder, but he said that he did not like to diagnose bipolar disorder based on a one-day evaluation; instead, he explained that he had diagnosed the mother with a mood disorder, which, he said, indicated that the mother suffered from fluctuating moods. According to Dr. Hammack, he had recommended that the mother participate in mental-health counseling and drug therapy with mood stabilizers in conjunction with an antidepressant. Dr. Hammack also had recommended that the mother have in-home assistance to help her set up a structured

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environment for the children and to teach her discipline techniques and how to relate to the children when they had out-bursts. Based on his evaluation in 2013, Dr. Hammack concluded that the mother could not, at that time, provide adequate supervision or structure for the children.

         Dr. Hammack's 2016 evaluation was similarly conducted; he noted that he had not readministered the MMPI to the mother but that he had readministered the other tests. The mother's IQ had improved somewhat to the average range, but Dr. Hammack did not indicate that the change was important. He said that the mother still suffered from some depression and anxiety and that she was fearful that negative outcomes would occur. Dr. Hammack testified that the mother had revealed that DHR did not think she was making enough progress. Dr. Hammack maintained his main diagnosis of mood disorder but also diagnosed the mother with borderline personality disorder. He reiterated in his 2016 evaluation that the mother would need ongoing counseling, mood-stabilizing drugs, and further in-home services. He also noted that the children would need to be in counseling. Dr. Hammack opined that, as of January 2016, the mother could not parent the children effectively, and he voiced concerns that the mother's personality would result in "less probability of her following through with the treatment plan."

         The older children were placed in counseling with Emma Cosby upon their placement in foster care. Cosby testified that the older children had already received psychiatric care at Laurel Oaks before she began treating them in January 2014. She explained that R.A. had been diagnosed with episodic mood disorder and had previously suffered sexual abuse. According to reports that Cosby had received from the foster parents, R.A. was bullying C.A., was lying, was acting out sexually, and was suffering from hallucinations and nightmares. Cosby noted that her first impression of R.A. was that she was underweight, avoided eye contact, and sucked her thumb, which Cosby said she had found unusual for a child of eight. Cosby testified that R.A. had made significant improvements during therapy, including being in the gifted program at school, cessation of sexual acting out, and less bullying of C.A. However, Cosby said that R.A. still has problems with lying at times and that her mood does fluctuate; Cosby also commented that R.A. and C.A. still had a difficult relationship. R.A. takes the following medications: Abilify, which serves as a mood stabilizer and antipsychotic, and Concerta, for attention-deficit/hyperactivity disorder ("ADHD"). R.A. also takes allergy medications and melatonin for sleep.

         Cosby also testified about her treatment of C.A., who had entered therapy with problems ranging from sexual acting out with R.A., self-soothing by excessive masturbation, hallucinations, and nightmares. Cosby commented that it was difficult at first to understand C.A., who appeared to suffer from some speech impediments or issues; Cosby said that, although C.A. was seven, listening to her was like listening to a three or four year old. According to Cosby, C.A. had been diagnosed with post-traumatic stress disorder, ADHD, and speech-language deficit and had also suffered child sexual abuse; C.A. had been in Laurel Oaks five times before Cosby began treating her. Cosby explained that C.A. was the most attached to the mother and that she suffered from the separation from the mother and her siblings, even going so far as to admittedly falsely report certain symptoms, like hallucinations, in an effort to be returned to the mother's custody. C.A. has been prescribed Lexapro, an antidepressant, Geodon, an antipsychotic, Vyvanse, an ADHD medication, and clonidine,

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another ADHD medication used in conjunction with Vyvanse. Cosby testified that, at the time she testified in November 2016, C.A. had had an additional psychological hospitalization after her entry into foster care.[5]

         Cosby had also treated L.N. and S.N. (hereinafter referred to collectively as "the younger children"). She explained that she had begun seeing the younger children in July 2014. She said that she saw L.N. for issues relating to bedwetting and attention-seeking behaviors. Cosby said that L.N. had suffered from an attachment disorder and enuresis, both of which had been successfully addressed in counseling. Cosby testified that she had treated S.N. based on his foster parents' concern that he would bang his head when sleepy; she said that S.N. also had some speech issues. According to Cosby, S.N. was tested for ADHD in December 2014 and placed on medication, which he takes only during the school week. Cosby said that, like L.N., S.N. had suffered from attachment disorder.

         Cosby testified that the older children had made some improvements in their mental health since entering foster care and counseling in January 2014 and that the younger children had made marked improvements. She explained that the older children would need consistent mental-health treatment throughout their childhood; as she put it, their problems will not "go away." Furthermore, Cosby commented that the older children need structure and consistency in order to manage their mental health and resulting behaviors, and she expressed concern regarding whether the mother could provide that structure and consistency. Cosby testified, however, that she had concerns about how a termination of the mother's parental rights would affect the older children, especially C.A. She indicated that, at least for C.A., continued foster care and visitation with the mother might be in C.A.'s best interest.

         The juvenile court questioned Cosby about her concern for the older children and the effect termination of the mother's parental rights might have on them. The juvenile court questioned how allowing the children to return to an unstructured home might affect them, to which Cosby answered that the children would decompensate. Cosby admitted that placing the children in an unstructured home would repeatedly expose them to continued stressors, which would, over time, be more harmful to them than termination of the mother's parental rights, which would occur only once. Cosby also noted that continued foster care and regular contact with the mother might have some negative consequences, like perpetually giving the children hope that reunification would occur, despite it being unlikely.

         To aid the mother, DHR provided in-home services through FOCUS to assist the mother with acquiring and improving parenting, budgeting, and home-management skills. Lori Foreman, the program manager for FOCUS, testified about the four interventions FOCUS had with the mother. The first intervention, which began in June 2013 and ended in October 2013, was what Foreman called a preservation intervention. According to Foreman, a FOCUS worker worked with the mother in her home for one hour, two days per week, to address the mother's issues with parenting, budgeting, and home-management skills. During the first preservation intervention, Foreman noted, the children were "wild," the mother had established no

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boundaries for the children, and the mother had established no schedule. Foreman also testified that the mother had had men in and out of the home, which, she said, had made the home less stable. Foreman commented that the mother had made some progress during the first preservation intervention but that it had not been successful because the mother had been unable to meet the goals established. Foreman said that the mother's progress would be like taking "two steps forward, three steps back"; she commented that when it seemed that the mother was making progress on stability, another person would be in the home on the next visit, resulting in more chaos.

         Foreman said that FOCUS had requested and had been granted an additional period to work with the mother to assist in the prevention of the removal of the children. That second preservation intervention lasted from October 2013 to December 16, 2013, when the children were removed from the mother's home by DHR. Foreman said that the second preservation intervention was marked by a decline in the mother's progress. During that second period, the mother violated the safety plan and allowed M.E. back into her home. According to Foreman, that was a safety threat to the children, which resulted in their removal and the termination of the second preservation intervention.

         Foreman testified that FOCUS had provided the mother with reunification intervention on two occasions. The first of the reunification interventions occurred between October 2015 and December 2015 when DHR attempted reunification of the mother with C.A. FOCUS again provided in-home services to the mother twice per week to review with the mother parenting, home-management, and budgeting skills. Foreman also explained that the mother would work well with the in-home worker on one occasion, even demonstrating an understanding of the parenting skills taught, but then, on a subsequent visit, would slam the door in the worker's face. The mother would then excuse her behavior by saying ...

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