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, ยง] 12-15-301 or neglect as defined in
subdivision (4) of ...