T.N. n/k/a T.N.G. v. Covington County Department of Human Resources
2180047, 2180048, 2180049, and 2180050
ALABAMA COURT OF CIVIL APPEALS
July 26, 2019
SPECIAL TERM, 2019
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Appeals from Covington Juvenile Court
(JU-13-185.02, JU-13-186.02, JU-13-187.02, and JU-13-188.02)
EDWARDS, Judge.
T.N., now known as T.N.G. (“the mother“), appeals from a judgment terminating her parental rights to her children,
“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
The termination of parental rights is governed by
“(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] 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.
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
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
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
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 environment for the
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,
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.
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,
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.
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
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 boundaries for the children, and the
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
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 that her medications were making her “moody.” Foreman commented that the mother‘s erratic and agitated behavior had occurred to varying degrees during each intervention.
During the first reunification intervention, the mother was granted unsupervised, overnight weekend visitation with C.A. Foreman said that she would pop in during the weekend visits to observe the mother and C.A. Foreman commented that,
FOCUS provided a second reunification intervention for the mother when DHR attempted to reunify her and the younger children beginning in February 2016, when the mother was
Foreman was questioned about C.G.‘s involvement with FOCUS services. She said that C.G. had sometimes participated in visits with the mother. She opined that C.G. was a stabilizing influence on the mother, but, she said, C.G. often had withdrawn when the mother became agitated and upset instead of standing up to her or pointing out her attitude. Thus, Foreman opined, C.G. had not been, and would not be, a sufficiently stabilizing influence when the mother became stressed.
Foreman testified that, in her opinion, the mother had not made significant and sustained improvements in her parenting and home-management skills such that even one child could be safely returned to the home. Although she admitted that the mother had made some strides in her home-management
Another concern Foreman voiced was the mother‘s lack of acceptance of her mental-health diagnoses and compliance with her treatment plan. Foreman said that the mother had periodically stopped taking her mental-health medications during FOCUS interventions and that the mother had indicated
Amanda Freeman, a FOCUS worker, testified that she had provided in-home services to the mother once per week between February 2016 and April 2016, when Freemen left her employment for maternity leave. Freeman said that the mother had been cooperative at first. She noted that the mother had utilized the parenting skills discussed and had given feedback about how she implemented her skills. However, after a few weeks, Freeman said, the mother had stopped cooperating; Freeman described the mother‘s participation after that point as being limited to one-word answers and indicated that the mother had stopped using her parenting techniques.
According to Freeman, the mother had informed Freeman that she had stopped taking her prescribed mental-health medications approximately two weeks into Freeman‘s involvement; Freeman said that the mother‘s decision to stop taking her medications coincided with the mother‘s decline in participation and the mother‘s agitation and paranoid-like behavior during sessions. Like Foreman, Freeman commented
Melinda Collier, the manager of therapeutic foster care at the United Methodist Children‘s Home (“the UMCH“), testified about the children‘s issues when they entered into foster care and their foster-care experiences. According to Collier, when the children were first removed from the custody of the mother in December 2013, R.A. was lagging behind in her school work, was destructive, and was defiant. C.A. suffered from sleep disturbances, self-soothed by masturbating, and hallucinated. C.A. had been in Laurel Oaks on at least four occasions before DHR became involved with the family. R.A. and C.A. were aggressive toward one another, and both had been
Collier testified that R.A.‘s behaviors have improved in her current placement. Collier noted that, although she was behind in her schooling when she entered foster care, R.A. tested into the gifted program at her current school and now enjoys school. R.A. testified briefly at trial and indicated that she enjoys school, misses her siblings, and is fond of her foster parents and her friends. Collier said that R.A.‘s school provides her special attention and services aimed at keeping her busy and engaged during the school day to minimize her disruptive behaviors.
Collier testified that C.A.‘s issues, unlike R.A.‘s, had not lessened over her time in foster care. In fact, Collier testified that, at the time of her testimony in June 2017, C.A. was at Brewer‘s Porch, a “very intense residential
Annie Hobbie, a DHR caseworker who was assigned to the children‘s cases beginning in November 2014, testified about her interactions with the mother and the children. Hobbie testified that the mother‘s home often had an odor, some of which might have been attributable to the pets in the home, which included two cats, a litter of puppies, and a turtle. Hobbie said that, early in her tenure as caseworker, the mother was having issues with the kitchen sink and with the heating system in the house. According to Hobbie, the mother received $733 in monthly Social Security disability benefits and did not have any other source of income except, perhaps, assistance from C.G., who Hobbie said might have been living in the mother‘s home and who did odd jobs to earn money. Hobbie said that she was not certain how the mother was able to pay her rent and utilities and provide food and clothing
Hobbie explained that the mother had made progress during DHR‘s involvement but that the progress was not sustained or consistent. According to Hobbie, the ISP team had determined that reunification with the older children would not be possible. She noted that R.A. had expressed an interest in having visitation with the mother but had also asked whether her mother could come live with her at her foster home. The issues with C.A., Hobbie explained, had continued both during and after the attempt to reunify her with the mother. Hobbie specifically mentioned C.A.‘s flushing toys down the toilet in her foster home and her suffering from encopresis while the attempt to reunify her with the mother was ongoing. After DHR ended the reunification effort, Hobbie said, C.A. had increased her self-soothing habit but had not suffered from encopresis as frequently.
Hobbie further explained that DHR was concerned about the mother‘s ability to monitor her own mental health. Hobbie said that the mother‘s pill counts were often wrong and that the mother had decided to discontinue her mental-health medications. The mother‘s inability to be responsible for her own mental health, Hobbie explained, caused significant concern over whether the mother could properly monitor the children‘s mental health and whether she would make certain they complied with treatment directives and took their medication properly.
Hobbie also testified that the mother had no relatives willing to assist her by assuming custody of the children.
Melinda Barton, the DHR supervisor at the time she testified in June and August 2017, testified that, in her opinion, the most pressing issue preventing reunification of the family was the mother‘s mental health. Barton testified that the mother had not, in her opinion, met the requirements set out by Dr. Hammack in his psychological evaluations.
The mother testified that she loves her children and that she is capable of rearing them. She described her relationship with each child as follows. The mother described her relationship with R.A. as “strained” when R.A. was younger and remarked that R.A. had struggled in school but had no behavior problems when she was in the mother‘s custody; the mother said that their relationship was “better now” because R.A. listened more and was not as “hyper” during visits with the mother.
The mother said that her relationship with C.A. was very close; she described C.A. as “very much like” her and said that C.A. was, at times, very “babyish” and, at times, more
The mother described her relationship with the younger children as good. She said that L.N. was “very bubbly” and was not easily agitated. She described S.N. as “all boy.”
The mother testified that she had learned parenting skills and coping skills from the FOCUS interventions. She said that she learned better ways to handle the children, how to talk about issues with the children, and how to use time out instead of yelling. She also described herself as more willing to listen and less argumentative as a result of the FOCUS interventions. The mother admitted that, when the
The mother further admitted that C.A. had been in Laurel Oaks several times before her removal from the mother‘s custody in December 2013. The mother indicated, however, that one or more of those hospitalizations had occurred when her adoptive parents had had custody of the children under a 2012 safety plan with the Coffee County Department of Human Resources. The mother also disputed some of the Laurel Oaks intake notes, which indicated that C.A. was suicidal and homicidal, that C.A. had hit and punched the mother, that C.A. had cut one of her siblings, and that C.A. had set something on fire. The mother said that C.A. was not homicidal and had never hit or kicked her, cut anyone, or set a fire; she admitted that C.A. was suicidal, that she had sometimes hit one or more of her siblings, and that she had cut her own hair.
The mother‘s two counselors, Carla Bent and Mavis Thomas, who are both employed with the South Central Mental Health
Thomas testified that she had been the mother‘s therapist since May 2015; she said that originally she met with the mother once per week but that, at the time she testified on August 31, 2017, she was meeting with the mother every other week. Thomas said that the mother had done well in therapy. Although Thomas testified that the mother suffers from a borderline intellectual disability, depression, and anxiety, she stated that she disagreed with Dr. Hammack‘s diagnosis of borderline personality disorder because, she said, the mother did not, in her opinion, have enough of the signs of that disorder. Thomas explained that during therapy she works with the mother on her self-esteem, on taking responsibility for
Thomas noted that the mother, although diagnosed as having bipolar disorder (by another psychiatrist who was not named), was not on any antipsychotic medications. Instead, she had been prescribed trazodone and Paxil, which are both antidepressants; however, the mother‘s records also indicate that she had been prescribed Lamictal, which is used to treat bipolar disorder. Thomas commented that “Dr.” Eslami had taken the mother off of her medications; however, treatment records admitted into evidence indicated that the mother had reported to personnel at SCMHC that she had discontinued taking her medications and had requested that she be taken off her medications.
A review of the mother‘s SCMHC records reveals that the mother reported to a “Neva Wallace” on March 14, 2016, that she was no longer taking her Paxil and that she thought she was being prescribed too much trazodone. Another entry from that same date by a “Jennifer Byars” indicates that the mother reported that she was no longer taking her prescribed medications because “I am on too much medication and my sleep medication [trazodone] is prescribed too high. ... I don‘t
A March 15, 2016, note by Bent indicates that the mother was happier during group therapy and that the mother had reported that “the doctor took her off of all her meds yesterday.” A March 24, 2016, progress note recorded by a “Brenda Donaldson” indicated that the mother reported that she had “recently told CRNP she has seen a psychiatrist and he told her ‘there is nothing wrong with me.‘” The March 24, 2016, note goes on to state that the mother had “asked that all medications ... be discontinued.” No note contained in the records from SCMHC indicates that a psychiatrist determined that the mother did not need her medications or
that she was not still suffering from bipolar disorder, which was the diagnosis that the records contained.
On appeal, the mother argues first that DHR presented insufficient factual evidence of her “unfitness” and, therefore, that the termination of her parental rights is not supported by clear and convincing evidence. Within the section of her brief discussing that issue, the mother complains that the juvenile court improperly admitted several of DHR‘s exhibits that, she contends, were subject to her hearsay objection.7 Secondly, the mother contends that the evidence at trial established that termination of her parental rights would not be in the best interest of the children.
DHR presented the testimony of two caseworkers assigned to the family, a DHR supervisor, a FOCUS supervisor, a FOCUS worker, the foster-care coordinator of the UMCH, the
The mother‘s argument on the hearsay issue, in contrast, is approximately one-page long and does not specify what factual information contained in those exhibits was hearsay and what might have been either (1) nonhearsay or (2) cumulative of the testimony of DHR‘s various witnesses admitted without objection. See L.A.C., 890 So. 2d at 1035 (explaining that the admission of a report containing hearsay “was harmless in view of the fact that [its maker] testified, without objection, to everything that was included in the written report“). The mother‘s objection at trial, which was made to both Exhibits 3 and 4 as a unit, also did not sufficiently apprise the juvenile court of what portions of
“‘When a party objects to a document as a unit that contains admissible as well as inadmissible matter, the trial court is justified in overruling the objection.’ Smith v. State, 354 So. 2d 1167, 1172 (Ala. Cr. App. 1977), cert. denied, 354 So. 2d 1172 (Ala. 1978). ‘It is not for the trial court to separate the admissible from the inadmissible.’ Tomlin v. State, 601 So. 2d 130, 131 (Ala. Cr. App. 1991) (quoting Pickett v. State, 456 So. 2d 330, 334 (Ala. Cr. App. 1982). ‘The objection should separate the good from the bad.’ Id.”
Fleming, 625 So. 2d at 1198. Thus, we reject the mother‘s hearsay argument.
We next address the mother‘s argument that the evidence does not support a conclusion that she is “unable or unwilling to discharge [her] responsibilities to and for the child[ren],
or that the conduct or condition of the [mother] renders [her] unable to properly care for the child[ren] and that the conduct or condition is unlikely to change in the foreseeable future.”
The mother specifically challenges the juvenile court‘s conclusion that the mother‘s mental illness prevented her from being a suitable parent. See
However, the mother views the evidence in the light most favorable to her argument. As is evident from the recounting
Furthermore, although the mother is correct that her counselors indicated that the mother was doing well off of her medications, other testimony indicated otherwise. For example, Freeman testified that the mother had reported that she was no longer taking her medications and that the mother‘s self-report coincided with the mother‘s less-than-cooperative attitude and lack of participation in FOCUS services in spring 2016. Foreman also testified that the mother had become increasingly agitated and less receptive to services in March and April 2016. Thus, despite the mother‘s contention to the contrary, the record contains evidence from which the juvenile
The mother next contends that the juvenile court placed too much emphasis on the mother‘s housing issues and not enough emphasis on the improvements the mother had made in her lifestyle. Certainly, as the mother notes, DHR had not placed significant emphasis on the issues that plagued the mother‘s housing choices.9 The juvenile court found that the mother had not been able to maintain stable housing, noting that the mother was planning another move at the time of the last date of trial; however, it noted specifically in its judgment that “housing was not the crux of this case.” The juvenile court found the housing issues to be “another issue of instability that supports the finding that the mother is unable to
discharge her responsibility to and for the children.” Based on those statements in the juvenile court‘s judgment, we cannot agree with the mother that the “issue of housing” played an “outsized” role in the juvenile court‘s decision-making process. Moreover, the mother fails to provide authority for her argument that the juvenile court was precluded from considering all the facts in these cases in reaching its conclusion that the mother was not able to parent the children. See White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1058 (Ala. 2008). Thus, we cannot reverse the juvenile court‘s judgment based on the mother‘s unsupported argument that the juvenile court improperly considered the evidence of the mother‘s housing issues.
We come to a similar conclusion regarding the mother‘s arguments that the juvenile court did not properly consider the improvements in the mother‘s personal life, “the important ways in which the mother has never been undependable or her life unstable,” the improvement in the relationships between her and the children, or her improvement in managing the children during the period when the children were in foster care. Again, the mother, in contravention of Rule 28(a)(10),
As the children have aged and been successfully treated through counseling and, in the case of the older children, the intervention of therapeutic foster parents or even residential-treatment facilities, their behavior has somewhat improved. The mother‘s interactions with the children during most visitations was noted to be appropriate; however, the mother was not able to successfully reunify with C.A. or with the younger children. Significant testimony from Pinson indicated that the mother had successfully managed the children‘s behavior in a variety of visitation settings, including in parks and in stores; however, other testimony indicated that the mother could become frustrated at visitations when the children would not conform to the mother‘s directives or plans.
Nor does the mother‘s decision to marry C.G. negate the other evidence indicating that the mother is not a suitable parent. Certain testimony indicated that C.G. does provide some stability to the mother; based on his testimony at trial, during which he explained that he had recently become regularly employed, he is also able to provide income for the family. However, other testimony indicated that, although C.G. served to stabilize the mother, he would not engage with the mother in situations when the mother was stressed or overwhelmed, deciding instead to withdraw from those situations. C.G. also opined that the mother‘s mental-health
A juvenile court must look to the totality of the circumstances in making the difficult decision to terminate parental rights. As we explained in L.M. v. Shelby County Department of Human Resources, 86 So. 3d 377, 384 (Ala. Civ. App. 2011), a juvenile court is to “weigh[] all the existing evidence” when determining whether clear and convincing evidence supporting a termination of parental rights exists, because
“[s]uch a conclusion finds support in our caselaw regarding termination of parental rights, such as the well settled principle that, ‘when deciding whether grounds to terminate parental rights exist, the juvenile court is not limited to evidence of current conditions; it may also consider the past history of a parent.’ R.L.M.S. v. Etowah Cnty. Dep‘t of Human Res., 37 So. 3d 805, 808 (Ala. Civ. App. 2009). This court has also recognized that a finding of dependency may be based on the totality of the circumstances. See V.G. v. Madison Cnty. Dep‘t of Human Res., 989 So. 2d 550, 554 (Ala. Civ. App. 2008); J.W. v. C.H., 963 So. 2d 114, 120 (Ala. Civ. App. 2007); and R.G. v. Calhoun Cnty. Dep‘t of Human Res., 716 So. 2d 219, 221-22 (Ala. Civ. App. 1998).”
86 So. 3d at 384 n.4. Improvements in certain areas, although certainly to be lauded, cannot offset continued issues in
Finally, the mother argues that the juvenile court erred in concluding that termination of the mother‘s parental rights was in the best interest of the children. The sole citation in support of this particular argument in the mother‘s brief is to R.K. v. State Department of Human Resources, 577 So. 2d 466 (Ala. Civ. App. 1990), in which this court affirmed the termination of a mother‘s parental rights. We presume that the mother is relying on the following statement from R.K., 577 So. 2d at 467: “[A]lthough a parent has a prima facie right to custody of his or her child, clear and convincing evidence that termination is in the child‘s best interests can overcome that presumption.”
Although the mother is correct that the record contains some evidence that termination of the mother‘s parental rights and the accompanying termination of the children‘s contact
In D.M.P. v. State Department of Human Resources, 871 So. 2d 77 (Ala. Civ. App. 2003), a plurality of this court explained that, in certain circumstances, termination of parental rights might not be warranted if a child‘s bond with a parent were significant. The plurality opinion explained that
“if, notwithstanding the unfitness of a parent, there remains a significant emotional bond between a child and an unfit parent, and it has been demonstrated that some alternative-placement resource would allow the child to visit periodically with the unfit parent so as to reap the benefit of partially preserving that relationship without incurring the harm of the child being raised on a
2180047, 2180048, 2180049, and 2180050 day-to-day basis by an unfit parent, the court would be required to weigh the advantage of that arrangement 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.”
D.M.P., 871 So. 2d at 95 n.17; see also Dallas Cnty. Dep‘t of Human Res. v. A.S., 212 So. 3d 959, 962 (Ala. Civ. App. 2016) (relying, in part, on D.M.P. to affirm a juvenile court‘s judgment declining to terminate the parental rights of a mother and a father based on the positive benefits of maintaining visitation between the parents and the child). We have applied this principle to reverse judgments terminating parental rights in two cases since D.M.P. was decided.
In C.M. v. Tuscaloosa County Department of Human Resources, 81 So. 3d 391, 395 (Ala. Civ. App. 2011), this court reversed a judgment terminating a mother‘s parental rights when the evidence demonstrated that the children‘s best interests would be served by their continued contact with the mother. The children in C.M., like the older children in the present case, had “disorders that ... require [the Department of Human Resources] to find adoptive parents who can maintain the children in a structured environment.” C.M., 81 So. 3d at 398. Based on the fact that visitation with the mother was in
Similarly in B.A.M. v. Cullman County Department of Human Resources, 150 So. 3d 782 (Ala. Civ. App. 2014), this court reversed a judgment terminating a mother‘s parental rights because the evidence indicated that the best interests of the child in that case would best be served by continued contact with the mother, did not indicate that continued visitation would be harmful to the child, indicated that the child would need continued care of the state to address his low intellectual functioning and his behaviors, and indicated that the child‘s likelihood for permanency was very low. As we explained, termination of parental rights is not required “when some less drastic measure might be employed to preserve the parental relationship without harming the interests of the child.” B.A.M., 150 So. 3d at 785. We opined:
“Given the almost total uncertainty as to whether the child will ever receive any stability or permanency if the judgment stands, and the almost total certainty that he will suffer serious
2180047, 2180048, 2180049, and 2180050 emotional turmoil if it does, we can perceive no advantage to the child in disturbing the status quo. Our supreme court has held that a juvenile court should maintain foster care or another third-party custodial arrangement without terminating parental rights when a child shares a beneficial emotional bond with a parent and the custodial arrangement ameliorates any threat of harm presented by the parent.”
In the present case, Cosby testified that the older children, and particularly C.A., would suffer emotionally if the mother‘s rights were terminated. Other evidence, adduced after Cosby testified, indicated that R.A. was more attached to her foster parents and was perhaps more emotionally detached from the mother. Barton testified that the foster parents of the younger children desired to adopt them and that R.A.‘s foster parents had begun discussing the possibility of pursuing adoption of her if the mother‘s rights were terminated. Thus, the facts of these appeals, at least regarding R.A. and the younger children, appear to diverge from the facts of C.M. and B.A.M., indicating that the juvenile court‘s decision to terminate the mother‘s parental rights is in those children‘s best interests and that revisiting that decision is not warranted. Accordingly, we
C.A., of course, presents the dilemma. She has not been able to maintain a foster placement and was placed in two residential mental-health treatment facilities during the pendency of the extended trial. Counseling and medication have not solved her continued erratic, sometimes violent, and off-putting behavior. The testimony of several witnesses noted that C.A.‘s bond with the mother was the most significant bond the mother had with any of the children. Although Cosby indicated that the older children would be most impacted by termination of the mother‘s parental rights, she clearly testified that the impact on C.A. would be the most potentially damaging. Thus, we must conclude, based on C.M. and B.A.M., that the juvenile court erred by terminating the parental rights of the mother respecting C.A., who, based on the testimony at trial and current circumstances, suffers from mental illnesses and behavioral issues that will likely serve as a significant impediment to permanency and would suffer significant emotional turmoil upon the permanent destruction
2180047, 2180049, and 2180050 — AFFIRMED.
Thompson, P.J., and Moore, Donaldson, and Hanson, JJ., concur.
2180048 — REVERSED AND REMANDED.
Thompson, P.J., and Moore, J., concur.
Donaldson, J., dissents, with writing, which Hanson, J., joins.
DONALDSON, Judge, concurring in appeal nos. 2180047, 2180049, and 2180050 and dissenting in appeal no. 2180048.
I concur with the main opinion to affirm the judgment in appeal nos. 2180047, 2180049, and 2180050. I dissent from the main opinion insofar as it reverses the judgment in appeal no. 2180048.
After personally hearing the presentation of evidence over 8 days of trial, the juvenile court entered a comprehensive, detailed 12-page consolidated judgment containing extensive findings of fact and conclusions of law on the issues presented in these termination-of-parental-rights cases. The judgment indicates that the juvenile court recognized the relationship between C.A. and her mother and carefully and thoughtfully considered the possible effect upon C.A. if the mother‘s parental rights were terminated. The record also reflects that, at times, the juvenile court questioned witnesses to obtain more information. I note that there was testimony presented indicating that, because the prospect of reunification with the mother was not likely, continuing to have visitation with the mother could leave a child with “false hope.” Ultimately, after hearing the
“maintained constant contact and communication with the child while he ha[d] been in the care of others. Multiple witnesses agreed that it would be in the child‘s best interest and necessary for his mental health that he and the mother continue to maintain their relationship and communication, even if he is not in her primary custody or care. Multiple witnesses further testified that the child suffer[ed] significant emotional distress when his visits with the mother end[ed].”
The facts of this case are markedly different. I think the decision of the juvenile court to terminate the mother‘s parental rights to C.A. is subject to disagreement, but is not
Hanson, J., concurs.