H.A.S. v. S.F.

          Appeal from Madison Juvenile Court (JU-18-406.01)

          PER CURIAM

         On March 5, 2018, S.F. ("the paternal grandmother") filed a petition in the Madison Juvenile Court ("the juvenile court") seeking to have M.G. ("the child") declared dependent. In her petition, the paternal grandmother alleged that H.A.S. ("the mother") could not provide a stable home for the child based on the mother's having allegedly been evicted from her most recent residence and based on her alleged choice to live in a housing project, which the paternal grandmother alleged was in "an inherently dangerous neighborhood," where the mother was not on the lease, creating further risk of eviction and homelessness. The paternal grandmother further alleged, "on information and belief," that the mother's then-boyfriend, Y.S., who the mother later married, had a history of drug use and possession. Finally, the paternal grandmother alleged that her son, A.G. ("the father"), who is the child's father, had been recently sentenced to life in prison. Thus, the paternal grandmother contended that the child was dependent and that the child's best interests would be served by placing her in the custody of the paternal grandmother.

         On March 26, 2018, the paternal grandmother sought an emergency pickup order from the juvenile court. In her motion, the paternal grandmother alleged that the mother had been avoiding service of the summons and dependency petition, that the child was not currently living with the mother in the housing project but, instead, was living with the mother's mother, A.A. ("the maternal grandmother"), and that the mother and her family had refused to allow the paternal grandmother contact with the child. The paternal grandmother also alleged that she was concerned that the child had apparently suffered an eye injury, possibly as a result of physical abuse, for which, the paternal grandmother further alleged, the mother was unable to provide medical care because the child had missed a scheduled appointment with an ophthalmologist when the maternal grandmother had had transportation issues on the date of the appointment. Thus, the paternal grandmother alleged that she was entitled to an emergency order of custody so that she could attend to the medical needs of the child.

         The juvenile court did not grant the paternal grandmother's motion for emergency custody. The juvenile court instead set the matter for a pendente lite hearing. After the pendente lite hearing on April 4, 2018, the juvenile court entered an order placing temporary custody of the child with the paternal grandmother. That order noted that the Department of Human Resources ("DHR") had become involved in the matter and intended to file dependency petitions regarding the child and the child's younger half sibling ("the half sibling"). In addition, the juvenile court ordered that DHR arrange the mother's visitation with the child concurrently with any visits arranged between the mother and the half sibling.

         Both the mother and the paternal grandmother filed motions seeking permission to conduct discovery, which the juvenile court granted. The juvenile court set the trial on the paternal grandmother's dependency petition for June 18, 2018; however, as a result of the parties' commencing but not completing discovery, the juvenile court reset the trial for September 10, 2018.

         At the end of June 2018, a dispute arose between the parties regarding visitation. The paternal grandmother filed an objection to the mother's having visitation in her home supervised by members of the mother's family. The mother responded with what she styled as an "Emergency Motion To Clarify DHR Authority to Establish Visitation," in which she contended that DHR had been granted the authority to arrange visitation in the pendente lite order and that the paternal grandmother, who had not attended any Individualized Service Plan ("ISP") meetings, despite having been invited to do so, could not "veto" visitation established by DHR. The juvenile court set the mother's motion for a hearing to be held on July 12, 2018. The record does not contain a transcript of that hearing or an order resolving the parties' conflict. However, on August 14, 2018, the juvenile court set the case for another pendente lite hearing to be held on August 30, 2018. That hearing was transcribed, and the transcript is included in the record on appeal.

         As noted above, the trial was scheduled for September 10, 2018. On August 31, 2018, the mother filed a motion to continue the trial. She based her request on allegations that discovery was not complete because the paternal grandmother had not signed her interrogatory responses, the paternal grandmother had not answered several specific discovery requests, and three nonparty subpoenas had not yet been answered. In addition, the mother contended that she had scheduled a hair-follicle drug test and that its results would not be available in time for the scheduled trial. The mother specifically requested a 90-day continuance of the trial.

         The mother amended her motion to continue on September 6, 2018, to state that she had received information from a third party indicating that the paternal grandmother's business, A&K Heavenly Homes, Inc., which operates group homes for the intellectually disabled, had had seven complaints filed against it. The mother listed the substance of those complaints in her amended motion; they included information that the paternal grandmother had engaged in inappropriate sexual activity with one of her employees in the presence of residents at one of the group homes, that the paternal grandmother employed persons on probation for federal drug trafficking, and that the business had misused a resident's food stamps. In addition, the mother alleged that she had been informed that the paternal grandmother had been involved in a violent altercation and had been charged with assault; the mother alleged that she had requested the records regarding that incident from the municipal court involved but had not been successful in obtaining those records. Finally, the mother contended that she had obtained information indicating that her abnormal drug screens could be the result of a liver condition and requested the continuance so that she could undergo testing to determine whether she suffered from that condition.

         The paternal grandmother objected to the requested continuance, commenting that the trial had been set for several months and that the mother had procrastinated in seeking discovery from third parties. She admitted in her objection to the amended motion that she had been charged with misdemeanor assault 15 years ago, but, she said, the charge had been dismissed. The juvenile court denied the requested continuance on September 7, 2018, stating in its order that "[t]he motions for continuance are not timely filed on the eve of trial after it was determined on August 30, 2018, that the mother had not presented three consecutive negative drug screens since this case began."

         On September 10, 2018, the date on which the trial was scheduled, the mother filed a motion to continue asserting that her attorney, Jimmy Sandlin, was in the hospital because of an emergency medical condition. The juvenile court granted a two-day continuance, resetting the trial for September 12, 2018. On September 11, 2018, the mother filed another motion for a continuance in which she asserted that Sandlin had "been placed on medical leave by his physician and is unable to adequately represent his client at this time." The mother attached a letter from Dr. Darla Cowart, which, in its entirety, read as follows:

"I provide primary care for James Sandlin. Due to recent health problems, I recommend that he take a 90 day leave of absence from work. I expect a full recovery following this time.

"I appreciate the consideration. If I can be of any assistance, please do not hesitate to contact me."

         Based on the physician's recommendation, the mother again requested a 90-day continuance.

         The paternal grandmother filed an objection to the mother's fourth motion to continue. The paternal grandmother noted that the mother had requested a 90-day continuance in her initial motion to continue and her amended motion to continue and alleged that, when those motions were denied, Sandlin conveniently became ill and again asked for a 90-day continuance. In addition, the paternal grandmother questioned whether Sandlin had, in fact, been hospitalized, because the 90-day excuse had been provided by Sandlin's primary physician and not by a treating physician from the hospital at which he had allegedly been treated on September 10, 2018. Thus, the paternal grandmother argued that the continuance was due to be denied, especially if Sandlin could not provide proof of his hospital admission; however, the paternal grandmother posited that, if the court was inclined to grant the continuance, the matter should be continued for no more than seven days, because, she alleged, Sandlin's law partner, Daniel Aldridge, had indicated to the court on September 10, 2018, that he was prepared to try the case in Sandlin's absence.

         The juvenile court denied the mother's fourth motion to continue. The trial commenced on Wednesday, September 12, 2018, and Aldridge appeared with the mother to again argue that the matter should be continued. The juvenile court refused to continue the trial, and Aldridge tried the case on September 12, 2018. The testimony was not completed on September 12, 2018, and, because the child's guardian ad litem had a previous obligation that prevented her from appearing on Thursday, September 13, 2018, and Friday, September 14, 2018, the juvenile court continued the matter to Monday, September 17, 2018. A different attorney, Melissa Miller, represented the mother at the September 17, 2018, trial.

         After the two-day trial, the juvenile court entered a judgment on November 12, 2018, determining the child to be dependent and awarding her custody to the paternal grandmother. The juvenile court specifically stated that it had not found the mother's testimony credible, found that the mother had had a history of instability in housing, found that the mother had been evicted twice, found that the mother's relationship with Y.S. was marked with domestic violence, found that the mother had not presented three consecutive negative drug screens between the institution of drug testing and the August 30, 2018, pendente lite hearing, found that DHR remained involved with the half sibling, and found that the mother had not properly attended to the child's medical needs. The mother filed a postjudgment motion, which the juvenile court denied after a hearing. The mother timely appealed.

         On appeal, the mother first argues that the juvenile court's judgment determining the child to be dependent is not supported by clear and convincing evidence of the child's dependency at the time of the trial. She also challenges the juvenile court's denial of her motions to continue based on outstanding discovery and on Sandlin's inability to represent the mother at trial. The mother's third issue on appeal relates to several evidentiary issues that she maintains support a reversal of the juvenile court's judgment. Finally, the mother argues that the juvenile court improperly applied a local rule concerning the consideration of abnormal drug screens as positive and unfairly prevented the mother from rebutting that "presumption."

         We are guided in our review of the mother's appeal by the following principles. A "dependent child" is defined in Ala. Code 1975, § 12-15-102(8), to include:

"a. A child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:

"1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in subdivision (2) of [Ala. Code 1975, §] 12-15-301 or neglect as defined in subdivision (4) of ...