A.P. v. Covington County Department of Human Resources

          Appeals from Covington Juvenile Court JU-15-118.05 and JU-16-48.04

          DONALDSON, JUDGE

         A.P. ("the mother") and D.T.H. ("the father") appeal from judgments of the Covington Juvenile Court ("the juvenile court") terminating the father's parental rights to W.T.H, G.H., and J.H. ("the children") and the mother's parental rights to G.H. and J.H. We reverse the judgments and remand the causes.

         Facts and Procedural History

         The father and the mother are the unmarried parents of G.H., born in October 2008, and J.H., born in January 2011. The father is a parent of W.T.H., born in June 2004. After W.T.H.'s mother passed away when he was four or five years old, W.T.H. began living with the father and the mother. In March 2016, the juvenile court granted the Covington County Department of Human Resources ("DHR") emergency custody of the children, and the children have been in the legal custody of DHR since then. G.H. and J.H. are in the foster care of T.P. and J.P. W.T.H. is in the foster care of another couple. The parents' visitations with the children were required to be supervised.

         On September 15, 2017, DHR filed complaints seeking the termination of the father's parental rights to the children and of the mother's parental rights to G.H. and J.H. The father answered the complaints and filed a counterclaim seeking custody of the children or, in the alternative, visitation with them. A guardian ad litem was appointed to represent the best interests of the children.

         On November 29, 2017, and on January 31, 2018, the trial court conducted a trial. At the trial, the father and the following DHR employees testified: Ladarious Benson, Andrea Hobbie, and Melinda Barton. Barton supervised the parents' case with DHR. Benson worked with the mother and the father from the end of 2015 to March 2017. According to Benson, DHR's initial concerns were the children's missing school days and doctor's appointments, reports of drug use, and overall stability of the home. Hobbie testified that she began working with the mother and the father in April 2017. Hobbie testified that she had the following safety concerns regarding returning the children to the parents: substance abuse, mental instability, financial instability, and housing instability.

         The DHR employees testified that there were regular Individualized Service Plan ("ISP") meetings at which goals were set for the parents and that the parents did not comply or provide proof that they had met many of the goals. Benson testified that the parents' financial situation was part of the reason that the parents did not meet the ISP goals. The DHR employees testified that the parents had generally been uncooperative throughout much of the time that the children were in DHR's legal custody. In his testimony, the father denied being uncooperative with DHR but admitted that he did not achieve many of the goals set.

         Benson testified that the mother and the father each underwent a psychological evaluation. Hobbie testified that, based on her psychological evaluation, the mother had a borderline personality disorder. Benson testified that, as a result of the psychological evaluations, drug counseling was recommended to the mother and marital counseling was recommended to both parents but that the mother and the father did not follow the recommendations.

         Hobbie testified that the parents were asked to participate in counseling services, mental-health services, drug screening, and substance-abuse treatment, but not parenting classes, because, she said, the parents were not ready for reunification with the children. According to Hobbie, the mother received a drug-treatment assessment on August 1, 2017, but did not receive drug treatment services because she had said that she had been sober for 180 days. Hobbie testified that the parents did not participate in other requested services.

         According to Benson, the parents have not received any drug treatments or counseling services. The father testified that he had attended a number of Narcotics Anonymous meetings and that he had attended some of the meetings with the mother. Benson testified that, while he worked with the mother, the results for the mother's drug screens were as follows: one positive for opiates and oxycodone, one passed, two refused, and one involving a diluted sample. Benson also testified that the mother had tested positive for methamphetamine and amphetamine. Hobbie testified that, while she worked with her, the mother submitted to the drug screens and tested positive once for "spice" in November 2017.

         Benson testified that the father tested positive in March 2016 for methamphetamine. Benson and Hobbie testified that the father did not test positive for illegal drugs while they worked with him but that he did not participate in some drug screens. Barton and Hobbie testified that the mother had reported that the father had used someone else's urine for some drug screens. The father tested positive on November 29, 2017, for Suboxone.

         In his testimony, the father admitted that he had taken methamphetamine resulting in his first positive drug test and that he had taken part of a Suboxone pill resulting in the positive drug test on November 29, 2017. The father testified that he did not take any illegal drugs between the two positive drug tests and that he had not taken any illegal drugs since the Suboxone pill. He testified that he had taken part of a Suboxone pill a few days before the positive drug test because he had hurt his ankle. The father testified that he had never been charged with illegal-drug possession, and he denied having a problem with illegal drugs.

         According to the testimony of the DHR employees, the mother and the father moved from place to place, were behind on paying rent and utilities, and lived with friends for a time. Benson testified that, during the time he worked with them, the parents informed him that they were working at jobs in which they were paid informally and that he never received confirmation of their employment. Hobbie testified that the father had reported working at several different jobs, that the mother had reported that she was interested in babysitting and cleaning houses, but that neither parent had provided proof of any employment.

         Barton testified that orders entered on October 22, 2016, required the mother and the father each to pay $100 a month for each of their children. The $100 amount consisted of $90 for their ongoing child-support obligation for each child and $10 for a child-support arrearage. Barton testified that the mother and the father have made some of the court-ordered payments but were in arrears.

         Benson testified that the mother had been incarcerated for some old warrants and that both the mother and the father had been incarcerated for failure to appear in court regarding nonpayment of child support. Benson testified that the mother also went to jail for an incident around Christmas in 2016 regarding which DHR had received a report indicating that the mother had assaulted T.P. in front of G.H. and J.H. and had caused harm to T.P.'s son. The father testified that he had been incarcerated for obstruction of justice when the children were taken into emergency custody. He testified that he had been incarcerated in April 2017 and again in September 2017 for not paying child support and for not appearing in court regarding child-support matters.

         In his testimony, the father acknowledged that he and the mother did not have stable housing for much of the time that the children were in DHR's care. The father testified that, after each time he was incarcerated for not appearing in court regarding child-support matters, he lost his job, the mother and the father lost their housing, and all their possessions were stolen. In her testimony, Hobbie agreed that the parents' incarcerations resulted in financial instability.

         According to the father's testimony, he and the mother ended their relationship around July 2017. The father testified that he had been in a relationship with another woman for around four or five months and that they were living together and engaged to be married. During the portion of the trial held on January 31, 2018, the father testified that he had not been incarcerated in the last six months, that he had made child-support payments, that he had maintained employment, that he had not missed any visitations, and that he had purchased a trailer with three bedrooms that is located on real property owned by his fiancé's family. The father also testified that he had taken and passed drug tests for the past few months. The father testified that he was currently employed by a construction company and that he did most of his work in the Montgomery area.

         Hobbie testified that the father had requested that she visit his latest residence. According to Hobbie, the father was not at the residence when she visited unannounced, and she did not attempt to revisit the residence because the permanency plan had changed to adoption rather than returning the children to the parents.

         Benson testified that the mother and the father initially did well in attending visitations with the children except when they were incarcerated. According to Benson, when DHR started requiring that the mother and the father take drug screens in order to have visitations, the mother and the father began to miss some visitations. Hobbie testified that, when she worked with the parents, the mother attended most of the visitations, the father missed a few, and both missed some visitations because of their incarcerations but that the parents generally attended the visitations with G.H. and J.H. Hobbie testified that, while she was working with him, the father had not maintained consistent visitation and contact with W.T.H. In his testimony, the father denied not having contact with W.T.H. in the months before the trial.

         According to the father, the jobs that he has held have not allowed him to take more than a day off a month and that DHR did not provide for weekend visitations with the children. The father testified that he lost three jobs because of having to attend DHR-related activities. The father testified that driving to the drug-testing facility, waiting for the drug testing, and attending the visitations all on the same day took up a large part of the day. According to the father, he could not take off ...