T.D.H. v. Mobile County Department of Human Resources (Appeal from Mobile Juvenile Court: JU-18-1192.02). ( 2023 )

REL: December 1, 2023
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) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________
CL-2023-0033, CL-2023-0034, CL-2023-0035, and CL-2023-0036
_________________________
T.D.H.
v.
Mobile County Department of Human Resources
Appeals from Mobile Juvenile Court
(JU-18-1197.02, JU-18-1196.02, JU-18-1195.02, and JU-18-1192.02)
________________________________
CL-2023-0057 and CL-2023-0058
__________________________________
J.M.S.
v.
Mobile County Department of Human Resources
Appeals from Mobile Juvenile Court)
(JU-18-1195.02 and JU-18-1197.02)
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
EDWARDS, Judge.
In October 2019, the Mobile County Department of Human
Resources ("DHR") filed petitions in the Mobile Juvenile Court ("the
juvenile court") seeking to terminate the parental rights of T.D.H. ("the
mother") and J.M.S. to four children: C.S., D.S., J.S., and M.S.; those
petitions were assigned case numbers JU-18-1192.02, JU-18-1195.02,
JU-18-1196.02, and JU-18-1197.02, respectively. DHR later amended its
petitions in case numbers JU-18-1192.02 and JU-18-1196.02, relating to
C.S. and J.S., to dismiss J.M.S. as a party because genetic testing had
established that he was not the father of either C.S. or J.S. DHR added
A.R. as a defendant in case number JU-18-1192.02 and C.L.J. as a
defendant in case number JU-18-1196.02. J.M.S. ("the father") remained
a party in case numbers JU-18-1195.02 and JU-18-1197.02.
After several continuances, the actions, which had been
consolidated for trial, were tried on October 13, 2022. After the
conclusion of the trial, the juvenile court accepted a December 2022
posttrial filing from the mother, as had been agreed upon at trial. On
January 15, 2023, the juvenile court entered judgments terminating the
2
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
parental rights of the mother to C.S., D.S., J.S., and M.S. and terminating
the parental rights of the father to D.S. and M.S. The judgments entered
in case numbers JU-18-1192.02 and JU-18-1196.02 did not terminate the
rights of A.R. or of C.L.J., respectively. Both the mother and the father
appeal. 1
I. The Mother's Appeals in Appeal Numbers CL-2023-0034
and CL-2023-0036
Before we may consider the arguments of the mother in appeal
numbers CL-2023-0034 and CL-2023-0036, we must first consider
whether this court has jurisdiction over those appeals.
"Although none of the parties has raised the issue
whether this court may consider [these] appeals, 'matters of
jurisdiction are of such importance that a court may consider
1The mother's appeal from the judgment entered in case number
JU-18-1192.02 was assigned appeal number CL-2023-0036; the mother's
appeal from the judgment entered in case number JU-18-1195.02 was
assigned appeal number CL-2023-0035; the mother's appeal from the
judgment entered in case number JU-18-1196.02 was assigned appeal
number CL-2023-0034; and the mother's appeal from the judgment
entered in case number JU-18-1197.02 was assigned appeal number CL-
2023-0033. The father's appeal from the judgment entered in case
number JU-18-1195.02 was assigned appeal number CL-2023-0057, and
the father's appeal from the judgment entered in case number JU-18-
1197.02 was assigned appeal number CL-2023-0058. This court
consolidated the appeals ex mero motu.
3
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
them ex mero motu.' Reid v. Reid, 844 So. 2d 1212, 1214 (Ala.
Civ. App. 2002).
" ' " 'It is a well established rule that, with limited
exceptions, an appeal will lie only from a final
judgment which determines the issues before the
court and ascertains and declares the rights of the
parties involved.' " Owens v. Owens, 739 So. 2d
511, 513 (Ala. Civ. App. 1999), quoting Taylor v.
Taylor, 398 So. 2d 267, 269 (Ala. 1981). This court
has stated:
" ' "A final judgment is one that
completely adjudicates all matters in
controversy between all the parties.
" ' "... An order that does not
dispose of all claims or determine the
rights and liabilities of all the parties
to an action is not a final judgment." ' "
D.L. v. Calhoun Cnty. Dep't of Hum. Res., 276 So. 3d 227, 230 (Ala. Civ.
App. 2018) (quoting Adams v. NaphCare, Inc., 869 So. 2d 1179, 1181 (Ala.
Civ. App. 2003), quoting in turn Eubanks v. McCollum, 828 So. 2d 935,
937 (Ala. Civ. App. 2002)).
As explained previously, DHR requested that the father be
dismissed as a party in case numbers JU-18-1192.02 and JU-18-1196.02
because genetic testing had excluded him from being the biological father
4
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
of C.S. and J.S. DHR then requested that A.R. be named as a defendant
in case number JU-18-1192.02, relating to C.S., and that C.L.J. be named
as a defendant in case number JU-18-1196.02, relating to J.S. Both A.R.
and C.L.J. were served by publication. The judgments entered by the
juvenile court in case numbers JU-18-1192.02 and JU-18-1196.02 fail to
address the requests by DHR that the parental rights of A.R. and C.L.J.
be terminated.
In its letter brief on the issue of this court's jurisdiction over appeal
numbers CL-2023-0034 and CL-2023-0036, DHR posits that, because
A.R. and C.L.J. are only alleged fathers and not legal fathers of C.S. and
J.S., the juvenile court was without statutory authority to terminate
their parental rights. See J.R.C. v. Mobile Cnty. Dep't of Hum. Res., 342
So. 3d 580 (Ala. Civ. App 2021) (determining that a juvenile court lacks
statutory authority to terminate the parental rights of a man who has
not been determined to be the legal father of a child). Although we agree
with DHR that the juvenile court lacked the statutory authority to
terminate the parental rights of A.R. and C.L.J. because the juvenile
court had not yet adjudicated their paternity of C.S. and J.S.,
5
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
respectively, DHR fails to recognize that the claim it asserted against
each man remains unadjudicated in the juvenile court. Had the juvenile
court determined that A.R. and C.L.J. were not legal fathers, had the
juvenile court denied DHR's petitions insofar as they sought to terminate
the parental rights of A.R. and C.L.J., or had the juvenile court dismissed
A.R. and C.L.J. from the actions because their parental rights could not
be terminated without an adjudication of paternity, these appeals could
have proceeded; certainly, had the juvenile court adjudicated the
paternity of A.R. and C.L.J. and terminated their parental rights, the
judgments would be final and capable of supporting these appeals.
However, the judgments entered in case numbers JU-18-1192.02 and JU-
18-1196.02 do not mention A.R. or C.L.J. or the termination-of-parental-
rights claims that DHR asserted against each of them, and those
judgments, which do not adjudicate the rights and liabilities of all the
parties before the juvenile court, are therefore not final judgments. Thus,
we dismiss the mother's appeals in appeal numbers CL-2023-0034 and
CL-2023-0036.
6
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
II. The Mother's Appeals in Appeal Numbers CL-2023-0033
and CL-2023-0035
A. Facts and Procedural History
Turning now to the mother's appeals in appeal numbers CL-2023-
0033 and CL-2023-0035, the record indicates that D.S. and M.S. ("the
children") were first removed from the custody of the mother and the
father, who were never married, in August 2018. Latonya Ankerson, who
was the investigator assigned by DHR to investigate the report made
against the mother and the father, testified that the report that DHR had
received indicated that the mother and the father had used illegal drugs
in the presence of the children; that the mother may have physically
abused D.S., resulting in his suffering a seizure; that the children may
have been exposed to sexual abuse by a person who had visited the
mother and the father; and that the mother had threatened to kill herself
and the children. Ankerson testified that she had interviewed the
mother's oldest child, C.S., at school, and that she had then visited the
mother and D.S. in the hospital, where D.S. was being treated for the
seizure. According to Ankerson, when she arrived at D.S.'s hospital
7
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
room, the mother was asleep on a small couch in the room. Although
Ankerson indicated that the mother had not been easily awakened and
that she had sought the assistance of a nurse in awakening her, she also
testified that the mother had awoken about one and a half minutes after
Ankerson's arrival.
Ankerson described the mother as being irate. Ankerson said that
the mother had used profanity and had yanked out some of her own hair
when Ankerson informed her that she would need to submit to a drug
test. Ankerson said that she had explained to the mother that DHR
would first require a urine test, at which point, Ankerson testified, the
mother had pulled down her pants and told Ankerson that she could "get
the piss up off the floor." Ankerson said that she had requested that
security be called to the room because of the mother's attitude and
behavior.
Ankerson testified that the presence of a security guard had only
escalated the mother's irate behavior. Ankerson explained that the
mother had telephoned her own mother, L.H. ("the maternal
grandmother"), and demanded, in a profanity-laced conversation, that
8
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
she come to the hospital. After the maternal grandmother arrived,
Ankerson was able to calm the mother enough to discuss the situation
with her.
Ankerson recalled that the mother had explained that she did not
know where C.S., J.S., and M.S. were and that the mother had said that
she had been unable to reach anyone to inquire regarding their
whereabouts. Ankerson said that the mother had visible bruising but
that the mother had refused to explain the cause of those bruises and had
told Ankerson that Ankerson did not need to know. Additionally,
Ankerson testified that the mother had denied drug use.
According to Ankerson, after she left the hospital, she went to the
family's residence, where she located C.S., J.S., and M.S. She testified
that C.S. was staying with the mother's sister, J.H. ("the maternal aunt"),
who lived down the street. Apparently, J.S. and M.S. were being
supervised by a man who said that he had met the family a few times
and that he was being paid to watch those children and by a woman who
said that she had offered to assist the mother by watching those children.
9
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
Ankerson described the family's home as a mobile home with bare
plywood floors, holes in some of the walls and doors, and very little food.
Ankerson explained that DHR had entered into a safety-plan
arrangement for C.S. and D.S., under which they would reside with the
maternal aunt; Ankerson said that the safety plan had prohibited C.S.
and D.S. from having unsupervised contact with the mother. Ankerson
said that J.S. and M.S. had been permitted to reside with the mother at
an inpatient drug-rehabilitation facility. However, Ankerson reported,
the mother soon left that facility and had had unsupervised contact with
C.S. and D.S., prompting DHR to file dependency petitions seeking an
award of custody of the children.
Ankerson testified that she had informed the mother that she had
tested positive for methamphetamine, amphetamines, and marijuana on
a urine test, to which the mother had submitted on August 10, 2018.
Ankerson said that the father had contacted her a few days after
Ankerson's initial contact with the mother; she said that, when she had
told him that DHR would like him to submit to a drug test, he had
informed her that he would test positive for any substances for which the
10
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
mother had tested positive because they were using the same illegal
substances. According to Ankerson, based upon her investigation, DHR
had determined that the mother and the father were "indicated" for
"physical harm" and "other risk of serious harm" based upon their being
positive for methamphetamine and other illegal substances.
Lakailyn Christian testified that she had been the family's
caseworker from July 2019 to November 2021. Christian said that the
mother had been "open and honest" with her about her desire to secure
sobriety in a conversation in July 2019. According to Christian, the
mother had indicated that the father had introduced her to drugs, that
the father was her "trigger," and that she was choosing to stay away from
the father. Christian testified that the mother had been hesitant to
discuss the father and had not provided contact information for him,
despite being requested to do so. Like Ankerson, Christian visited the
mother's home, which she described as requiring some maintenance and
repairs to appliances, including the stove.
According to Christian, she had usually discussed the mother's case
plan with her over the telephone. She testified that she had discussed
11
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
with the mother services that DHR could offer her, like drug testing,
parenting classes, and anger-management classes. She indicated that
the mother had produced documentation indicating that she regularly
attended Narcotics Anonymous meetings. Christian described the
mother as having been only partly receptive to services, noting
specifically that Christian had thought that the mother was not as
receptive as she could have been to the counseling offered to her by DHR.
Regarding the counseling offered to the mother by DHR, Christian
testified that DHR had provided the mother individual counseling with
Amy Turner. Turner's records are contained in the record on appeal.
Those records indicate that, beginning in August 2019, the mother had
participated in five monthly sessions with Turner, one of which,
according to the notes, consisted solely of a random drug screen. Turner
documented the mother's impulse- and anger-control issues and
discharged her from counseling in December 2019, indicating that the
mother was not addressing her impulse- and anger-control issues despite
being aware of those issues. Turner's notes reflected that the mother had
expressed displeasure with Christian, had used racial slurs in describing
12
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
Christian, and had stated that she hoped that Christian and her infant
child would die. Christian testified that, after the mother's counseling
sessions with Turner were terminated, the mother had not appeared to
be receptive to the idea of counseling. Christian admitted, however, that,
although she recalled discussing certain options with the mother, she was
not certain whether she had referred the mother to another counselor.
Christian testified that the mother had regularly submitted to drug
tests. Although the record is devoid of the results of the mother's drug
tests taken during Christian's tenure as caseworker, Christian explained
that the mother had tested positive at times and had been upset to learn
of positive results. Christian said that the mother had requested to have
her own testing performed, which DHR had permitted, but that the
results of at least one of those tests had also been positive. According to
Christian, the mother had not admitted drug use even when confronted
with positive test results. Christian also indicated that the mother had
been in and out of jail during her tenure as caseworker.
According to Christian, she had regularly supervised the mother's
visits with the children. She then recounted an odd encounter with the
13
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
mother after a visitation in November 2019. According to Christian, she
had been discussing with the mother her case plan and asking her about
her support system when the mother began crying "uncontrollably" and
pulling at her own hair. During that conversation, Christian explained,
the mother received a telephone call from an employee at the Subway
restaurant where the mother was employed at the time. Christian said
that the mother stopped crying, had a calm conversation with the caller,
and then resumed crying after she ended the telephone conversation.
Christian testified that she had then asked the mother to calm down so
that they could continue to discuss her case plan but that the mother had
gotten up and stormed into the hallway.
Christian said that, based upon the mother's behavior at that
November 2019 meeting, DHR had imposed restrictions on the mother.
She said that the mother was required to be off DHR's premises by 4:30
p.m., that the mother had to telephone in advance and make an
appointment to see Christian, that any such appointment had to be
scheduled before 3:00 p.m., and that the mother's visitations with the
children had to be supervised by both Christian and a security guard.
14
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
Christian admitted that the presence of a security guard during
visitations had made the children uncomfortable, so, she said, DHR had
decided that, instead, a DHR supervisor must attend each visit.
Regarding the father, Christian testified that her first contact with
him had been by telephone in May 2020. Christian said that she had
obtained the father's telephone number from his attorney and that she
had initiated the contact. She described their conversation as "open and
honest" and said that the father had admitted that he had not been an
active participant since the children had been placed in foster care in
August 2018. Although Christian testified that she had informed the
father that DHR required him to submit to a drug test, she said that he
had not submitted to any drug testing during her tenure as caseworker,
which ended in November 2021. Christian further testified that she had
not performed a home visit on the father's residence because, she said, he
had informed her that he was living with another person and, as far as
she was informed, that person had never agreed to allow DHR to visit the
residence.
15
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
Christian said that the father had attended the mother's visit with
the children the week following her initial telephone contact with him,
which, she had said, was in May 2020. According to Christian, the
children had been excited to see the father and he had been excited to see
them. However, Christian also testified that the father had not visited
the children on his own even once between July 2019 and May 2021, after
which, she said, he had visited the children only twice before November
2021. Thus, the record reflects that the father visited the children only
three times between their removal from the home in August 2018 and
November 2021.
Christian also testified that she had sought potential relative
resources for the children by performing what she described as "Seneca"
searches. Copies of those search results appear in the record on appeal.
Christian said that she had contacted those persons located by the Seneca
searches by mail about serving as resources for the children but that none
of those persons had responded to the letters she had sent. According to
Christian, the maternal grandmother had been rejected as a potential
resource by DHR because of her history with DHR and her drug use.
16
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
Similarly, Christian explained that the maternal aunt had been rejected
as a potential resource because she had failed to prevent C.S. and D.S.
from having contact with the mother during the pendency of the safety
plan. The children's maternal grandfather, Je.H., had been rejected as a
resource because he was a registered sex offender.
According to Christian, termination of parental rights and adoption
was the appropriate plan to ensure permanency for the children.
Regarding M.S., Christian testified that she had disrupted several foster-
care placements because of her unspecified behaviors, that she had
recently been diagnosed with attention-deficit/hyperactivity disorder
("ADHD"), and that she had been placed in a therapeutic foster-care
placement only two months before trial. Although Christian said that
M.S. was doing well in her current placement, she admitted that DHR
was still assessing whether the new foster parents would be willing to
commit to serving as an adoptive resource for M.S. When asked how
termination of parental rights would secure permanency for D.S.,
Christian answered:
17
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
"We have referred them to State DHR which is our
adoption consultant, and we have started looking for adoptive
resources for the children pending that they're legally free for
adoption. We also look for legal risk placements should we
[have to] wait for the [termination of parental rights] to be
finalized to find an adoptive resource for the children."
Vera Evans, the family's caseworker at the time of the trial,
testified that she had begun her tenure as caseworker in November 2021.
Evans explained that the mother had had hour-long visits with the
children at DHR's offices on the third Thursday of each month. She said
that the father had sometimes attended those visits with the mother. She
said that her recollection was that the father had visited with the
children "maybe four" times since November 2021, and, when asked
whether the father had attended 100% or 50% of the visits, she stated
that he had attended an "in between" percentage of the visits. She also
testified that the father had sometimes been late to the visits he had
attended. When questioned about whether the children had regular
contact with each other, Evans indicated that the children saw each other
at the monthly visits and that the foster parents did "get together and let
the children visit with one another" as often as "once a week or every
18
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
other week on the weekends," depending on the activities and schedules
of the children.
Although Evans first testified that M.S.'s foster parents desired to
adopt her, she recanted that testimony later, indicating instead that no
decision to pursue adoption had been made by M.S.'s current foster
parents, who Evans admitted had served as foster parents for 24 years;
when asked whether those foster parents had ever adopted a child, Evans
indicated that she was "not aware of that." She also testified that the
permanency plan for D.S. was adoption with no identified resource.
Evans noted that M.S. suffered from ADHD and that D.S. was autistic
and suffered from a seizure disorder.
Regarding the circumstances of the father, Evans testified that she
had not visited his residence. In fact, she stated that she did not have
the father's address. She indicated that the father had a good
relationship with the children based on her observation of them during
visits. She said that she had requested that the father undergo a drug
test only once during her tenure as a caseworker and that the father had
not submitted to that test.
19
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
The mother testified that she had been enrolled in an inpatient
drug-treatment program at The Lovelady Center since March 3, 2022.
She admitted that she had enrolled in that program because she had been
ordered by a court to do so or face imprisonment relating to her March
2021 convictions for assault in the first degree, burglary in the third
degree, and intimidating a witness. According to the mother's testimony
and documentary evidence in the record, the mother had been sentenced
to five years of incarceration for those convictions, but her sentences had
been "split," she had been credited with time served in jail, and she had
been placed on probation for a term of three years. The mother admitted
that she had violated the terms of her probation and that her probation
had been revoked, resulting in her compulsory enrollment in the drug-
treatment program at The Lovelady Center; DHR did not dispute the
mother's testimony regarding the revocation of her probation.
The mother discussed the circumstances of her various arrests. She
explained that the assault conviction had resulted from her discharging
a firearm. According to the mother, on the date of that incident, her
boyfriend, S.B. ("the boyfriend"), was driving her vehicle, and she was a
20
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
passenger. She said that two other men, H.B. and Ch.S., were also in the
vehicle and that the group had done drugs together. She said that H.B.
had requested that the boyfriend stop at a car wash, where H.B. got out
of the vehicle and confronted C.Y., a man unknown to the mother at that
time. The mother recalled that the two men had exchanged words and
had engaged in a physical altercation, during which C.Y. pulled out a
gun, after which H.B., who was also armed with a gun, shot C.Y. four
times. The mother testified that, during the exchange of gunfire, she had
remained in the vehicle, but she admitted that she had fired a gun,
shooting in the general direction of C.Y., and that her bullets had struck
a truck and not C.Y.
The mother described the facts surrounding her burglary conviction
by stating that she had not actually engaged in the act of burglary but
that she had had the boyfriend perform the actual act of burglary while
she had remained in her vehicle in the parking lot of the Subway
restaurant at which she had previously worked. The mother explained
that she had been upset because Subway had not relinquished her last
paycheck to her and that her anger had prompted her to act to take what
21
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
she was owed. The mother denied that she had intimidated a witness
relating to the burglary after she had been released on bail on the
burglary charge, but she pleaded guilty to that charge.
The mother admitted that she had previously completed a drug-
rehabilitation program at Home of Grace in 2019 but that she had
relapsed. She also testified that she had begun drug-rehabilitation
programs at Haven of Hope in 2018 and at Altapointe at an unspecified
date but had not completed either. She admitted that she had not
completed counseling with Turner. She said that she had consistently
attended Narcotics Anonymous and/or Alcoholics Anonymous meetings.
Although the mother admitted that she had been using illegal drugs
at the time the children were removed from her custody, she insisted that
she had not used illegal substances in 2020. She said that she had
remained clean for quite some time after completing a drug-
rehabilitation program at Home of Grace in 2019. She admitted that she
had relapsed in or around October 2021. She also admitted that she had
tested positive on drug tests for DHR and on those she had procured for
herself in 2020, but she insisted that the results of those tests were
22
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
incorrect. She testified that she had not tested positive for any illegal
substances while at The Lovelady Center.
The mother testified that she was doing well at The Lovelady
Center and that she was due to graduate from its drug-treatment
program in November 2022. She explained that she had learned to take
ownership of her actions and that she knew that the predicament she was
in with the children was of her own making. She said that she planned
to stay at The Lovelady Center and participate in the aftercare program
there upon her graduation. She said that the children would be able to
live with her and attend an onsite school while she worked in the thrift
store and participated in classes and continued therapy. The mother
testified that she was working to complete her GED and that she hoped
to be able to take college courses in business management in the future.
According to the mother, she had completed at least three anger-
management courses since the removal of the children in August 2018.
However, as noted above, Turner had indicated in 2019 that the mother
was aware of her anger-management issues but was not willing to
address them. In addition, the mother admitted that she had recently
23
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
expressed frustration by using profanity in a discussion with the father
at the DHR offices when the children were late for their scheduled one-
hour of visitation.
The mother also admitted that she had remained involved with the
boyfriend until August 2022, even inviting him to attend M.S.'s birthday
party that month. The mother said that she had maintained her
relationship with the boyfriend because she had thought that he was also
undergoing drug rehabilitation, but, she said, she had learned at the
birthday party that he had left his inpatient drug-rehabilitation facility.
According to the mother, she ended her relationship with the boyfriend
at that time. 2
According to the mother, she had not missed a visitation with the
children since she began treatment at The Lovelady Center. She
explained that her visits were held on every third Thursday of the month
2The mother testified that she had thought that she and the
boyfriend had married each other in early 2022 when they were both
incarcerated in the Mobile County jail. However, she testified that she
had since learned that the paperwork evidencing their marriage had
never been filed and that they were not actually married.
24
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
for one hour. The mother indicated that, at times, not all of the children
attended the visits. She stated that she was entitled to telephone visits
with the children every other Sunday, but, she said, she never received
telephone calls from D.S.; she testified that M.S. telephoned her
regularly. She said that she had complained to her caseworkers about
the lack of telephone visitation with D.S. and that the caseworkers had
indicated that they would speak to the foster parents, but, she said,
nothing had changed.
Joanne Henry, a client representative from The Lovelady Center,
testified that the mother was one of her clients. She explained that the
mother had progressed through the phases of the program and was, at
the time of trial, in phase five, the final phase before graduation from the
program. She testified that, although the mother had been withdrawn
and very angry when she first arrived at The Lovelady Center, the
mother had worked through the program and had taken ownership of her
part in creating her circumstances. Henry said that the mother had a
great work ethic and that she could always be found where she was
supposed to be and doing what she was supposed to be doing. Like the
25
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
mother, Henry testified that The Lovelady Center provided aftercare to
clients after graduation from the program, which included assistance
with housing, employment, and random drug testing. Henry further
explained that The Lovelady Center would accommodate any court-
ordered requirements or stipulations that might be placed on a client,
including offering family therapy or more frequent drug testing.
Catalina Arata, Ph.D., testified that she was a clinical psychologist
who had performed a psychological evaluation on the mother in
September 2022. Arata summarized some of the family history that the
mother had provided to her, which included the mother's being sexually
abused by a grandfather; having a relationship with the maternal
grandfather, who could not live in the home because he was a registered
sex offender; having been emotionally abused by the maternal
grandmother, who abused drugs; having been removed from the custody
of the maternal grandmother by DHR; having been placed both in foster
care and in a group home during the period of DHR's involvement; having
been returned to the custody of the maternal grandmother at some point;
and becoming pregnant at age 15 (presumably with C.S.) following a
26
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
relationship with a man who was over age 20. She said that the mother
had indicated that she had first used drugs while in middle school and
that the mother had completed the eighth grade but had not returned to
school after the birth of C.S. Arata indicated that the mother was not a
good historian and that, at times, her dates "did not add up," but she said
that she had believed that the mother had been honest with her during
the evaluation.
According to Arata, the mother suffered from some depression but
not at a clinical level. She indicated that the mother's depression was
typical of those facing similar life situations. Arata also testified that
testing had revealed that the mother showed no real indications that she
faced a significant risk of physically abusing the children.
When asked about the mother's attitude, Arata stated that the
mother had acknowledged that she had displayed significant anger and
had acted inappropriately toward DHR personnel at the outset of DHR's
involvement with the family. Arata testified that the mother had
revealed that she had been led by her mother to believe that her brother,
who had committed suicide during the period he and the mother had been
27
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
in DHR's custody, had been killed by his foster family, which, Arata said,
had led to the mother's having severe mistrust of DHR. Arata admitted
that the mother had significant issues with anger but said that the
mother had improved her self-control. Arata further testified that she
believed that the mother was making a sincere attempt to change and
that her efforts had been largely successful, if not entirely complete.
Arata further opined that the mother suffered from untreated
ADHD and that she would benefit from a psychiatric evaluation and
treatment to assist her with her ADHD and perhaps to support her
efforts to change with medications like mood stabilizers. Arata suggested
that the mother would need continued counseling to assist her with
maintaining her sobriety. She said that the mother had a good work ethic
and solid functional living skills but also indicated that the mother might
benefit from a vocational-rehabilitation assessment and services to assist
her with gaining financial security. When asked about the mother's
likelihood of relapse, Arata testified that the mother faced a mild to
moderate risk of relapse if she were able to maintain stable employment
28
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
and housing but that her risk of relapse would increase if she were unable
to maintain security in those aspects.
Arata opined that the mother was not yet capable of parenting the
children on her own. She noted that the mother's situation, which was
living in a drug-rehabilitation facility, was more transitional and not a
truly stable living circumstance. She indicated that her recommendation
for the mother would be to complete the program at The Lovelady Center,
to remain in the aftercare program for at least one year, to continue with
individual therapy, and to seek a psychiatric evaluation and possible
psychiatric treatment. Thus, Arata indicated that the mother would not
be sufficiently capable of assuming the role of a parent to the children for
at least another 13 months after the trial.
When questioned about the children, whom she had not evaluated
or even met, Arata opined that the children should be permitted to
maintain contact with one another. She also testified that the children's
bonds with their foster parents should be considered when evaluating the
termination of parental rights. She stated that "the younger they were
… when they were placed [in a foster-care placement], that is certainly
29
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
the bond they've been with the foster parent more than they've been with
their biological parent, that would be an issue … I think that has to be
considered."
The father testified only briefly. He stated that he is the father of
the children. He testified that he rents a three-bedroom home with ample
room for the children. The father said that he had been employed as a
tow-truck driver with a towing company for one year, that he worked
Monday through Friday from 7:00 a.m. to 5:00 p.m., and that he was on
call every other weekend.
He admitted that he had been incarcerated in 2020 on a theft-of-
property conviction and that he had completed his sentence of
incarceration on April 5, 2021; he said that he was still on probation
following his release from incarceration. According to the father, he
regularly submits to drug tests as a term of his probation and also
submits to random drug tests as a condition of his employment. He said
that his drug-test results had been negative. He testified that he had not
used drugs in over two years.
30
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
Although the father initially testified that he had not been provided
services by DHR, when questioned more specifically about whether DHR
had offered him parenting classes and anger-management classes, he
indicated that those services had been offered but that he had not taken
any classes. When asked why he had not taken the drug test requested
by Evans, the father said that he had intended to take the test but that
he had been called to work and could not go to the testing site. He
admitted that he had not contacted Evans to explain the situation or to
reschedule the drug test.
The father testified that he had a bond with the children, but he did
not testify regarding the frequency or paucity of his visits with them. He
said that he could support the children financially without assistance
from the mother. He also said that his ex-wife could assist him with the
children when he had to work.
B. Standard of Review
The termination of parental rights is governed by Ala. Code 1975,
§ 12-15-319. That statute reads, in part:
31
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
"(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 a hearing on
a petition for termination of parental rights, the court shall
consider the best interest of the child. 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
the 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
32
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
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.
"(13) The existence of any significant
emotional ties that have developed between the
child and his or her current foster parent or
parents, with additional consideration given to the
following factors:
"a. The length of time that the
child has lived in a stable and
satisfactory environment.
"b. Whether severing the ties
between the child and his or her
current foster parent or parents is
contrary to the best interest of the
child.
"c. Whether the juvenile court has
found at least one other ground for
termination of parental rights."
The test a juvenile court must apply in a termination-of-parental-
rights action is well settled:
"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
33
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
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
judgment terminating parental rights must be supported by clear and
convincing evidence. P.S. v. Jefferson Cnty. Dep't of Hum. 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 Ala. Code 1975, § 6-11-20(b)(4)). Although 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
Cnty. Dep't of Hum. Res., 43 So. 3d 602, 605 (Ala. Civ. App. 2010), "[t]his
court does not reweigh the evidence but, rather, determines whether the
findings of fact made by the juvenile court are supported by evidence that
the juvenile court could have found to be clear and convincing." K.S.B. v.
M.C.B., 219 So. 3d 650, 653 (Ala. Civ. App. 2016). That is, this court
34
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
" 'must ... look through ["the prism of the substantive
evidentiary burden," Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 254 (1986),] to determine whether there was
substantial evidence before the trial court to support a factual
finding, based upon the trial court's weighing of the evidence,
that would "produce in the mind [of the trial court] a firm
conviction as to each element of the claim and a high
probability as to the correctness of the conclusion." ' "
K.S.B., 219 So. 3d at 653 (quoting Ex parte McInish, 47 So. 3d 767, 778
(Ala. 2008), quoting in turn Ala. Code 1975, § 25-5-81(c)).
C. Analysis
The mother argues that DHR failed to establish that no viable
alternative to the termination of her parental rights existed or that
termination of parental rights was in the best interest of the children.
The mother contends that maintaining the status quo was a viable
alternative under the circumstances. She also relies on this court's
recent opinion in T.W. v. Calhoun County Department of Human
Resources, [Ms. CL-2022-0694, June 2, 2023] ___ So. 3d ___ (Ala. Civ.
App. 2023), to support her argument that DHR failed to establish that
the children would achieve permanency through termination of her
parental rights. In addition, the mother also argues briefly that DHR did
35
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
not establish that the mother's conduct or condition prevented her from
discharging her parental responsibilities or that her conduct or condition
was unlikely to change in the foreseeable future. See Ala. Code 1975, §
12-15-319(a).
We first consider the mother's argument that the evidence before
the juvenile court did not clearly and convincingly establish that she was
unable or unwilling to properly parent the children and would remain so
for the foreseeable future. The mother contends that the evidence
indicated that she was working to address her addiction to illegal
substances and complying with an order issued by the court that had
sentenced her on her criminal convictions by completing inpatient drug
treatment at The Lovelady Center. Although we agree that the mother's
participation in the program at The Lovelady Center and her
incarceration in the months immediately preceding her enrollment in
that program had resulted in the mother's refraining from the use of
illegal substances for approximately 10 months as of the date of the trial,
the mother was attending that program to avoid further incarceration.
We commend the mother for her apparent dedication to the program, but
36
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
the juvenile court was not required to determine that the mother's
participation in her most recent drug-rehabilitation program had
resolved the issues that had prevented her from effectively discharging
her parental responsibilities to and for the children.
At the time of the trial, the mother had not yet completed the
program at The Lovelady Center, but she was expected to graduate in
November 2022. In addition, the mother's own witness, Arata, indicated
that the mother's need to graduate from the program was not the only
impediment to her resuming her role as a parent to the children. Arata
testified that the mother was not yet capable of resuming her parental
role and opined that the mother would need to not only complete the
inpatient program at The Lovelady Center but also participate in at least
one year of structured aftercare before she might be ready to resume
custody of her children.
We have explained that a parent's attempt to remedy the conduct
or condition that prevents him or her from being an adequate parent
should be accomplished in a timely fashion. Talladega Cnty. Dep't of
Hum. Res. v. M.E.P., 975 So. 2d 370, 374 (Ala. Civ. App. 2007) (expressing
37
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
the oft-stated principle "that there is a point at which the child's need for
permanency and stability will overcome the parent's rights to
rehabilitation by DHR"). In fact, typically, a parent should rehabilitate
himself or herself within 12 months of the removal of the child or children
from the home. M.A.J. v. S.F., 994 So. 2d 280, 291 (Ala. Civ. App. 2008)
(explaining that, "when DHR timely exerts reasonable rehabilitation and
reunification efforts, the parents generally shall have 12 months from the
date the child enters foster care to prove that their conduct, condition, or
circumstances have improved so that reunification may be promptly
achieved"). The juvenile court was free to give weight to the fact that the
children had been in DHR's custody since August 2018, a period
exceeding four years at the time of the trial.
Despite the mother's active participation in the program at The
Lovelady Center and its positive influence on her, the record contains
sufficient evidence to support the juvenile court's conclusion that the
mother was unable to properly discharge her parental responsibilities to
and for the children and that the mother's condition, although improving,
was unlikely to change in the foreseeable future. As we have explained,
38
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
"[d]ue to the emphasis on prompt permanent disposition of
children in foster care, the juvenile courts should only extend
the period of rehabilitation when the evidence establishes
that a limited additional amount of time or effort will
necessarily result in the rehabilitation of the parent and
accomplishment of the goal of family reunification …."
M.A.J., 994 So. 2d at 291 (emphasis added). The children had been in
the custody of DHR and in foster care for over four years at the time of
the trial. The mother's most recent attempt to conquer her addiction
began in March 2022, over three and a half years after the children were
removed from her custody. Arata's testimony indicates that the mother's
completion of the program at The Lovelady Center would not alone rectify
the mother's inability to parent the children; instead, Arata
recommended that the mother participate in at least one additional year
of aftercare, together with continued counseling and potential psychiatric
treatment, before she might be able to resume her role as a parent. Thus,
the juvenile court had before it sufficient evidence to determine that the
mother was unable to properly parent the children at the time of the trial
and that she would not be able to resume her parental duties for a least
one additional year, and we can conclude that, in these cases, the juvenile
39
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
court could have determined that the children's need for permanency and
stability had overcome the mother's right to additional time for
rehabilitation. See Ex parte Bodie, [Ms. 1210248, Oct. 14, 2022] ___ So.
3d ___ (Ala. 2022) (reversing the determination of this court that a
juvenile court had erred in concluding that the evidence clearly and
convincingly established that a mother's circumstances were unlikely to
change in the foreseeable future); M.E.P., 975 So. 2d at 375 (reversing a
judgment denying a petition for the termination of parental rights of a
father and a mother and stating that the "children … deserve a
permanent placement instead of continued foster placement for a year or
more while awaiting their parents' possible, but not certain,
rehabilitation").
The mother next argues that DHR failed to present evidence
demonstrating that termination of her parental rights to the children
would secure permanency for them. As the mother points out, DHR
presented no evidence indicating that either D.S. or M.S. had any
identified adoptive resource or that adoption would be a likely outcome.
The record reflects that D.S., who was just over eight years old at the
40
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
time of the trial, was autistic and suffered from a seizure disorder that
required medication. Evans testified that M.S., who was five years old
at the time of the trial, had been recently diagnosed as suffering from
ADHD and had disrupted "several" foster-care placements because of her
behavior, which is not described in the record. Thus, the evidence reflects
that D.S. and M.S. are "special-needs children," as that term is defined
in Ala. Admin. Code (Dep't of Hum. Res.), r. 660-5-22-.06, which
addresses adoption subsidies offered to adoptive parents of children who
are determined to have special needs. Specifically, both D.S. and M.S.
were, at the time of the trial, age five or older. Ala. Admin. Code (Dep't
of Hum. Res.), r. 660-5-22-.06(2)(a)2.(iv). In addition, D.S. and M.S. both
suffer from a mental disability. Ala. Admin. Code (Dep't of Hum. Res.),
r. 660-5-22-.06(2)(a)2.(i).
As the mother contends, the record contains evidence indicating
that she had a bond with the children. We have stated that " '[i]f some
less drastic alternative to termination of parental rights can be used that
will simultaneously protect the children from parental harm and
preserve the beneficial aspects of the family relationship, then a juvenile
41
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
court must explore whether that alternative can be successfully
employed instead of terminating parental rights.' " T.W., ___ So. 3d at
___ (quoting T.D.K. v. L.A.W., 78 So. 3d 1006, 1011 (Ala. Civ. App. 2011)).
We also recently reiterated in T.W. that, "before proceeding to terminate
the parental rights of the parents of special-needs children, a juvenile
court must consider whether the children will likely achieve permanency
through adoption." ___ So. 3d at ___ . Moreover, we cautioned in T.W.
that, "[i]n order for the juvenile court to consider [whether a special-needs
child will likely achieve permanency through adoption], it [is] incumbent
upon DHR to present clear and convincing evidence of the viability of
adoption so that the juvenile court [can] make an informed evaluation
and decision." Id. at ___.
We agree with the mother that the record in the present cases,
much like the record in T.W., contains no evidence indicating that
adoption is a likely or foreseeable outcome for either D.S. or M.S. The
record contains conclusory statements from the caseworkers that
adoption is in their best interest, but no testimony or documentary
evidence supports the conclusion that either D.S. or M.S. will be able to
42
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
achieve permanency through adoption at any point, much less in the
foreseeable future. Although DHR presented evidence indicating that
M.S.'s foster parents had not yet determined whether they might be
interested in adopting her, Evans admitted that those foster parents had
served as foster parents for 24 years, a fact which indicates that they had
not been involved in the foster-care system as a means to secure adoptive
children. DHR presented no evidence indicating that finding an adoptive
home for D.S. or M.S. would be likely or that DHR routinely secures
adoptive homes for children over the age of five or for those who suffer
from autism, seizure disorders, or ADHD. Without such evidence, we
cannot affirm the judgments of the juvenile court terminating the
parental rights of the mother to D.S. and M.S. in appeal numbers CL-
2023-0035 and CL-2023-0033, respectively. 3 See T.W., ___ So. 3d at ___.
3Our reversal of the judgments terminating the mother's parental
rights to the children does not foreclose DHR from again seeking
termination of the mother's parental rights
"if the mother's or [the children's] circumstances change and
if other evidence develops regarding [the children's] best
43
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
III. The Father's Appeals in Appeal Numbers CL-2023-0057
and CL-2023-0058
As noted above, the father appeals from the judgments entered in
case number JU-18-1195.02 and in case number JU-18-1197.02
terminating his parental rights to D.S. and to M.S., respectively. In his
brief on appeal, the father advances the same basic arguments as the
mother, but he also contends that the holding in T.W. mandates reversal
of the judgments terminating his parental rights to D.S. and to M.S. For
the reason we have reversed the judgments terminating the parental
rights of the mother to D.S. and to M.S. in case number JU-18-1195.02
and case number JU-18-1197.02, respectively, those same judgments are
also reversed insofar as they terminate the parental rights of the father.
interests …. See L.M. v. Shelby Cty. Dep't of Human Res., 86
So. 3d 377, 381-84 (Ala. Civ. App. 2011) (explaining that
consideration of evidence existing at the time an initial
petition for a termination of parental rights is denied is not
barred by the doctrine of res judicata so long as the
subsequent termination-of-parental-rights action is also
based on new evidence of changes, or a lack thereof, in
circumstances)."
T.N. v. Covington Cnty. Dep't of Hum. Res., 297 So. 3d 1200, 1221 n.10
(Ala. Civ. App. 2019).
44
CL-2023-0033; CL-2023-0034; CL-2023-0035; CL-2023-0036; CL-2023-
0057; and CL-2023-0058
CL-2023-0033 -- REVERSED AND REMANDED.
CL-2023-0034 -- APPEAL DISMISSED.
CL-2023-0035 -- REVERSED AND REMANDED.
CL-2023-0036 -- APPEAL DISMISSED.
Moore, Hanson, and Fridy, JJ., concur.
Thompson, P.J., concurs in the result, without opinion.
CL-2023-0057 -- REVERSED AND REMANDED.
CL-2023-0058 -- REVERSED AND REMANDED.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.
45