Lead Opinion
T.L.S. (“the mother”) appeals from separate judgments of the Lauderdale Juvenile Court (“the juvenile court”) that terminated her parental rights to M.S. and K.S. (hereinafter referred to collectively as “the children”).
Procedural Background
In May 2009, after a teacher reported to the Lauderdale County Department of Human Resources (“DHR”) that K.S. had visible marks about his head and neck, DHR began investigating the mother for physical abuse. DHR instituted a safety plan at that time pursuant to which the mother’s mother assumed physical custody
While in the custody of the father, M.S. revealed that she had been sexually molested by P.W., her stepfather. Ke.S., the children’s older sister, also disclosed that she had been sexually abused by P.W. K.S. indicated that he had witnessed the sexual abuse of his oldest sister and that D.M., another adult male relative, had sexually abused him. DHR investigated those allegations and filed “indicated” reports against P.W. and D.M. in 2010.
On June 24, 2010, the mother was convicted of violating § 26-15-3, Ala.Code 1975.
DHR filed petitions to terminate the mother’s parental rights to the children on December 9, 2011. Following a trial on June 8, 2012, the juvenile court entered separate judgments terminating the mother’s parental rights to M.S. and K.S., respectively, on June 19, 2012. The mother appealed to this court on June 29, 2012.
Analysis
The mother first argues that the juvenile court failed to use reasonable efforts to rehabilitate her and to reunite her with the children. DHR counters that, because the mother was convicted of child abuse, the juvenile court had no duty to use reasonable efforts to rehabilitate the mother and to reunite the family.
When a child is removed from the home of the custodial parent and placed in foster care, a juvenile court must make specific findings within 60 days of the removal regarding “whether reasonable efforts have been made to prevent removal of the child or whether reasonable efforts were not required to be made.” § 12-15-312(a)(2), Ala.Code 1975 (emphasis added). Within 12 months of foster-care placement, the juvenile court must document whether
In this case, the children were removed from the home of the mother in May, 2009 but they were not placed into foster care until August 2010. Based on the statutory deadlines, the juvenile court had until October 2010 to determine whether reasonable efforts to rehabilitate the mother and to reunite the family were required. If the permanency plan called for family reunification, the juvenile court had until August 2011 to specify whether reasonable efforts had been made to achieve that goal. Thus, any issues as to whether reasonable efforts were required and, if required, whether reasonable efforts to reunite the family had been made, should have already been decided before DHR filed its petitions to terminate the mother’s parental rights. If that had occurred, the doctrines of collateral estoppel or res judicata would have barred the relitigation of those issues. See F.V.O. v. Coffee Cnty. Dep’t of Human Res., [Ms. 2110398, Dec. 7, 2012] — So.3d -(Ala.Civ.App.2012).
The record does not contain any of the orders of the juvenile court entered before December 9, 2011. In its petitions to terminate the mother’s parental rights, DHR averred that it had used reasonable efforts to reunite the family; DHR did not allege that it had been excused from those efforts. During the trial, when the mother introduced evidence tending to question the reasonableness of the efforts to reunite the family, DHR did not object that the issue had already been determined. DHR also did not move the juvenile court to take judicial notice of any of its previous orders. In its final judgments, the juvenile court found that DHR had used “fair and reasonable efforts toward reunification of the minor children] with [their] parents ... and that such efforts had not been successful.” The record indicates that the parties and the juvenile court treated the issues surrounding reasonable efforts as if they had not been previously judicially determined. Because the parties litigated those issues and the juvenile court adjudicated those issues, we find that those issues can be considered in this appeal. See Gatlin v. Joiner,
As noted, DHR did not assert at any point during the trial that it did not have to use reasonable efforts to reunite the family. DHR raises that point for the first time in its brief to this court. An appellate court cannot consider an argument raised for the first time on appeal to reverse a judgment, but it can consider a new argument for affirming the judgment. See Verchot v. General Motors Corp.,
At trial, DHR introduced evidence indicating that the mother had been convicted by the Lauderdale Circuit Court of violating § 26-15-3. That conviction served as prima facie evidence that the mother had “torture[d], willfully abuse[d], cruelly beat, or otherwise willfully maltreat[ed]” a child. § 26-15-3; see generally Durham v. Farabee,
Under § 12-15-312(c), reasonable efforts are not required when a parent has tortured the child at issue or a sibling of the child at issue and the court also determines that the risk of further abuse or neglect is too high for the child to be returned home safely. See also New Jersey Div. of Youth & Family Servs. v. A.R.G.,
The mother next argues that the juvenile court erred in changing the permanency plan from family reunification to
The mother next argues that the record does not contain clear and convincing evidence of her current unfitness to parent the children, particularly in regard to K.S. We disagree. The evidence in the record shows that the mother tortured K.S. and that the mother downplayed the severity of her physical abuse. She noted that her parents had routinely beaten her with any nearby objects, and she considered it normal to do likewise to the children. After receiving education on appropriate discipline, the mother continued to defend her punishment of K.S. and attributed the marks on his head and neck solely to the fact that he was fair-skinned. Angel Geiske, who performed a parenting assessment of the mother in May 2011, testified that the mother has “a great deal of societal ideations,” meaning that the mother perceives abusive behavior to be acceptable and that the mother could not overcome those beliefs despite her best attempts. Geiske also testified that when a parent willfully abuses a child it is unlikely that the parent will ever properly parent the child.
Because of their abuse, both children suffer from emotional and behavioral problems. Due to the mother’s cognitive limitations, which were proven by intelligence testing, Geiske testified that the mother would not be a viable resource for ordinary children, much less children with specialized needs. Kimanthi Stewart, an employee of the Children’s Aid Society, also testified that, after working with the mother for three or four months in 2009, she did not foresee family reunification as an achievable goal due, in part, to the mother’s mental-health issues. Those mental-health issues remained unresolved at the time of trial.
Based on the above evidence alone, without considering any responsibility the mother may have had for allowing P.W. to return to the family home after receiving reports that he was sexually abusing her daughters, the juvenile court reasonably could have been clearly convinced that the mother lacked the appropriate protective capacities to properly parent the children. A juvenile court can terminate parental rights if clear and convincing evidence
The mother next contends that the juvenile court prematurely terminated her parental rights. The mother points out that, at the time of the trial, she had moved into her own apartment, had obtained steady employment, had completed a parenting class, had attended mental-health counseling, and had paid child support. Jessica Riddle, an employee of Youth Villages, testified that, from May to September 2011, the mother had worked harder than any parent she had ever counseled and that the mother had improved her circumstances. Riddle testified that she had terminated her efforts to rehabilitate the mother only upon a change in the permanency plan and that, if she had been given an additional five years, she felt like the mother could have been reunited with the children.
Section 12-15-319 authorizes a juvenile court to terminate a parent’s parental rights if “the conduct or condition of the parent[ ] renders them unable to properly care for the child and ... the conduct or condition is unlikely to change in the foreseeable future.” Conceding, for the purposes of the present argument, that the mother could be completely rehabilitated in five years, that change would not occur “in the foreseeable future.” Concerned parents should rehabilitate as quickly as possible in order to resume custody of their children. The legislature has established that a 12-month period from the time a child enters foster care is “a presumptively reasonable time for a parent to rehabilitate.” M.A.J. v. S.F.,
Citing C.M. v. Tuscaloosa County Department of Human Resources,
“ ‘to weigh the advantage of [some alternative-placement resource that would allow the child to visit periodically with the unfit parent] against the advantage of termination and placement for adoption with permanent fit parents, and to decide which of these alternatives would be in the child’s best interest.’ ”
In this case, the children suffer from severe emotional and behavioral problems stemming from their abuse. Both children reside in special therapeutic foster homes. Their foster parents have indicated to DHR that they are amenable to providing long-term care for the children, although neither has committed to adoption. In those respects, the children very much resemble the children in CM. because their prospects for adoption are uncertain. However, the lack of an identified adoptive resource does not'neeessarily preclude termination of parental rights. R.B. v. State Dep’t of Human Res.,
The mother in this case presented some evidence indicating that she shared a strong emotional bond with the children, but other evidence disputed that connection. Specifically, John Ruffin, M.S.’s current therapist, testified that although M.S. cared for and loved the mother, M.S. had rarely even talked about the mother and had not informed him that she wanted to return to the custody of the mother. At times, M.S. had informed other counselors that she did not want to live with the mother and that she was angry and confused by her mother’s refusal to believe that she was being sexually abused. During counseling in 2010, K.S. stated that he did not want to live with the mother and that he feared the mother. The record contains almost no evidence regarding KS.’s current feelings toward the mother. No evidence suggested that the children necessarily would be damaged by ending their relationship with the mother. Furthermore, some evidence indicates that the children would regress behaviorally after visiting the mother. Based on that evidence, the juvenile court reasonably could have been clearly convinced that it would not serve the best interests of the children to forgo termination of the mother’s parental rights even in the absence of an identified adoptive resource. Thus, we find C.M. to be distinguishable from this case and conclude that this case falls more clearly within the line of cases holding that, generally speaking, maintaining a child in indefinite foster care is not a viable alternative to termination of parental rights. See T.G. v. Houston Cnty. Dep’t of Human Res.,
Next, the mother maintains that the juvenile court erred in terminating the parental rights of the father, who, the mother contends, was a viable relative resource for the children. We disagree. The evidence shows that the father had married and was sharing a small home with his wife and their two children. After learning of the children’s plight, the father and his wife assumed their custody in the fall of 2009. The children soon exhibited
Even if the mother had standing to contest the termination of the father’s parental rights, see D.C.L. v. Marion Cnty. Dep’t of Human Res.,
Finally, the mother contends that K.D., the fiancée of the mother’s brother, testified at the trial that she would be willing to act as a placement for the children. Although K.D. knew of the children’s predicament, she did not come forth until the date of the termination hearing. See M.J.C. v. G.R.W.,
In summary, we conclude that the juvenile court and DHR had no duty to use reasonable efforts to reunite the mother with the children, that the juvenile court had clear and convincing evidence before it to terminate the parental rights of the
2111073 — AFFIRMED.
2111074 — AFFIRMED.
Notes
. “Indicated” means "[w]hen credible evidence and professional judgment substantiates that an alleged perpetrator is responsible for child abuse or neglect.” § 26 — 14—8(a)(1), Ala.Code 1975.
. Although the sexual abuse occurred while the children were in the custody of the mother, and although some of the acts of abuse occurred in her home, DHR did not cite the mother for abuse or neglect as a result of the actions of P.W. and D.M., and she was never charged with a crime in connection with the sexual abuse of the children.
. Section 26-15-3, Ala.Code 1975, provides:
“A responsible person, as defined in Section 26-15-2, [Ala.Code 1975,] who shall torture, willfully abuse, cruelly beat, or otherwise willfully maltreat any child under the age of 18 years shall, on conviction, be guilty of a Class C felony.”
. The judgments also terminated the father's parental rights with his consent. The father has not appealed the judgments.
Concurrence Opinion
concurring in the result.
I agree that the judgments of the juvenile court are due to be affirmed. However, the main opinion relies on F.V.O. v. Coffee Cnty. Dep’t of Human Res., [Ms. 2110398, Dec. 7, 2012] — So.3d - (Ala.Civ.App.2012), to support some of its conclusions. I dissented in that case. Id. at -. For the same reasons expressed in that dissenting opinion, I disagree with relying on F.V.O. as a basis for affirming the judgments in this case.