P.R. v. Houston County Department of Human Resources (Appeal from Houston Juvenile Court: JU-19-169.03). ( 2023 )

REL: December 15, 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
_________________________
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_________________________
P.R.
v.
Houston County Department of Human Resources
Appeal from Houston Juvenile Court
(JU-19-169.03)
EDWARDS, Judge.
In December 2022, the Houston County Department of Human
Resources ("DHR") filed in the Houston Juvenile Court ("the juvenile
court") a petition seeking to terminate the parental rights of P.R. ("the
mother") to T.C. "(the child"). After a trial held on April 20, 2023, the
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juvenile court entered a judgment terminating the mother's parental
rights. She timely appealed that judgment to this court.
The grounds warranting a termination of parental rights are set
forth in § 12-15-319, Ala. Code 1975, a part of the Alabama Juvenile
Justice Act ("the AJJA"), § 12-15-101 et seq., Ala. Code 1975. Section 12-
15-319(a) provides, in pertinent part:
"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 interests 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.
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"....
"(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.
"....
"(9) Failure by the parent[] to provide for the
material needs of the child or to pay a reasonable
portion of support of the child where the parent is
able to do so.
"(10) Failure by the parent[] to maintain
regular visits with the child in accordance with a
plan devised by the Department of Human
Resources, or any public or licensed private child
care agency, and agreed to by the parent.
"(11) Failure by the parent[] to maintain
consistent contact or communication with the
child.
"(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.
"(13) The existence of any significant
emotional ties that have developed between the
child and his or her current foster parent or
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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."
In addition to determining whether a child is dependent and whether
grounds exist under § 12-15-319 to support a termination of parental
rights, a juvenile court must also "properly consider and reject all viable
alternatives to a termination of parental rights." B.M. v. State, 895 So.
2d 319, 331 (Ala. Civ. App. 2004).
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
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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
" '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)).
Our review of the record reveals the following facts. Torrie Nelson,
a DHR employee, testified that she had been the mother's caseworker
from December 2018 until October 2020 and that DHR's involvement
with the mother had begun when DHR received a report indicating that
the mother was using illegal substances in the presence of her four
children. Nelson said that, after investigating the report, DHR found the
mother "indicated" for "chemical endangerment." See Ala. Code 1975, §
26-14-8(a)(1). She explained that, in December 2018, the mother entered
into a safety plan with DHR, pursuant to which the child was placed in
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the care of N.B., a maternal great-aunt; Nelson testified that, in January
2020, the child was placed with "another maternal great-aunt, another
family member, relatives of the child," who had apparently secured a
provisional foster-care license. 1 Nelson then testified that, on March 8,
2020, the juvenile court awarded custody of the child to the mother's
great-grandmother, F.R. ("the maternal great-great grandmother").
According to Nelson, in October 2018, the mother participated in an
individualized-service-plan ("ISP") meeting at which she agreed to
submit to a substance-abuse assessment and to random drug testing.
Nelson said that, at a January 2019 ISP meeting, the mother agreed to
continue to submit to random drug tests, to complete a substance-abuse
assessment and to follow the recommendations resulting from that
assessment, and to undergo a parenting assessment. Although Nelson
1Nelson did not initially provide the names of the relatives with
whom the child was placed. However, when she was later asked the
names of the previous custodians of the child under the safety plan, she
replied with only one name -- N.B. In fact, during further questioning,
Nelson appeared to indicate that the child had had only two previous
placements or custodians -- the maternal great-great grandmother and
N.B. -- despite her initial testimony indicating that the child had had two
different relative placements before the juvenile court awarded custody
to the maternal great-great grandmother.
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testified that the mother had complied with services "for a while," she
said that the mother had not attended most of the random drug tests that
Nelson had requested.
Nelson described the mother as uncooperative and her behavior as
unpredictable. Nelson said that, at times, she had believed that she had
developed a rapport with the mother, resulting in the mother's
cooperation but that, at other times, the mother's behavior had been
erratic. She explained that she had witnessed the mother threatening
other DHR personnel and having outbursts at ISP meetings. In addition,
Nelson testified that a March 2020 ISP meeting had to be suspended
because of the aggressive behavior of the mother's boyfriend, P.G.
According to Nelson, she and a supervisor had discussed P.G.'s behavior
with the mother, and, in response, the mother had stated that she no
longer desired to participate in DHR's services. As a result, Nelson
explained, the mother had not participated in services offered through
DHR through at least October 2020, when Nelson ceased to be the
mother's caseworker. Nelson testified that, in October 2020, DHR had
assumed custody of the child after the maternal great-great grandmother
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permitted the child to have unsupervised contact with the mother in
violation of the safety plan. The record contains a shelter-care order
entered in case number JU-19-169.02 on October 16, 2020; that order
reflects that the child's custodian at that time was the maternal great-
great grandmother. The record also contains the dependency order
entered by the juvenile court in case number JU-19-169.02 in February
2022 that found the child dependent as to the mother and the maternal
great-great grandmother and transferred custody of the child from the
maternal great-great grandmother to DHR.
Nelson testified that her concerns during her tenure as caseworker
for the mother included the mother's potential continuing use of illegal
substances. Although Nelson said that the mother had admitted only to
using marijuana, Nelson indicated that the mother's erratic conduct had
led to her concern that the mother had been abusing various illegal
substances. Nelson further testified that the mother had admitted that
her relationship with P.G. included acts of domestic violence. Nelson said
that the mother's admission of domestic violence had raised concerns
about the mother's stability and protective capacity. In addition, Nelson
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explained that other concerns that she had had regarding the mother
included the mother's history with DHR, the number of "indicated"
findings relating to the mother, and the mother's lack of cooperation with
DHR.
Nelson testified that, as far as she could recall, she had not been
provided with a list of potential relative resources by the mother. She
said that, if she had received such a list, she would have assessed those
relatives for potential placement; however, she indicated that she had no
recollection of having done so. She testified that an "Accurint" search
was conducted by another caseworker and that it had not yielded any
potential resources that she could recall. She also testified that the fact
that the maternal great-great grandmother had violated the safety plan
by allowing the mother to have unsupervised contact with the child
indicated a lack of protective capacity on the maternal great-great
grandmother's part and precluded her from further consideration as a
relative resource. Nelson never stated the reason that the child had been
removed from the physical custody of the maternal great-aunt or the
other "relative" that had assumed placement of the child.
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Rae Bryan testified that she had served as a DHR supervisor over
the mother's case throughout the entire period that it had been active
and that she had also served as a caseworker for the mother's case
between June 2021 and November 2021 and again beginning in February
2022 until November 2022. She explained that her concerns regarding
the mother were that "the parent lacked parenting and the lack of
behavioral control and also [that she] lacked parenting knowledge and
skills and motivation that affect the child's safety as well." She testified
that the child, who was 5 years old at the time of the trial, had been in
the custody of DHR and in foster care for a total of 30 months.
According to Bryan, the mother had attended several ISP meetings
between October 2020 and June 2021 but had not completed any of the
services that she had agreed to complete. Bryan specifically testified that
the mother had not managed to rehabilitate herself to achieve
reunification because the mother had not "[taken] advantage of services
that [DHR had] offered, [had not] controll[ed] her behavior, and lack[ed]
protective and parental capacities." Bryan did not expound on the
mother's lack of protective or parental capacities. She testified that, like
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Nelson, she had observed the mother's difficult behavior. She explained
that she had witnessed the mother's becoming irate when she was asked
to submit to a drug test. Bryan described the mother as having become
very upset and said that a security guard had had to escort the mother
from the building.
Bryan said that she had observed visits between the mother and
the child and that the mother had usually spent most of the visits
concerned with her two other children, whom she was also visiting. She
said that the mother would typically spend some time with the child at
the conclusion of a visit but, she said, during most of the visit the child
had interacted with a cellular telephone or a video game. Bryan also
testified that the mother had not been permitted to visit with the child
after December 23, 2021, because she had been banned from the DHR
office "due to safety risks for the children" and that the mother had not
thereafter requested that she be allowed to visit with the child.
Bryan indicated that she had not been able to contact the mother
to invite her to the February 2022 ISP meeting. She said that she had
driven to the mother's address on two occasions and had not found
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anyone at home either time. Bryan said that, because she had not found
anyone at the mother's residence, she had not mailed an invitation to the
February 2022 ISP meeting to that address. She testified that she had
made telephone calls to the mother and that she had not received an
answer or a return call. She said that the mother had not contacted DHR
at all after February 11, 2022.
Bryan further testified that she had performed an Accurint search
for potential relative resources. When asked if the search had identified
any other relatives of the mother, Bryan did not answer the question.
Instead, when asked if that search had yielded any potential relative
resources, Bryan testified that "the only other relative that contacted us
was an aunt out of Texas." According to Bryan, the Texas relative had
indicated interest but had failed to complete and return necessary
paperwork to institute a home study pursuant to the Interstate Compact
for the Placement of Children ("ICPC"), Ala. Code 1975, § 44-2-20 et seq.
The mother admitted that she had had a drug problem in 2018 and
2019 when she "was stressed out and … was going through a lot from
[DHR] stepping into [her] life." She testified, however, that she had quit
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using drugs in 2020. Although she admitted that she and P.G. had gotten
into arguments, she denied that they ever "fought each other" and denied
having ever told Nelson that she or P.G. had engaged in domestic violence
during their relationship.
The mother also admitted that she had a criminal history.
Although she said that she had been arrested in 2018 for trespassing, she
indicated that she did not recall the underlying facts leading to that
arrest. She said that she had pleaded guilty to obstruction of justice in
July 2022, that she had been sentenced to serve 24 months' incarceration,
that her sentence had been suspended, and that she had been placed on
probation. She further admitted that she had violated her probation and
that she had been required to serve her 24-month sentence in the
Houston County Community Corrections Center. In addition, the mother
testified that she had been arrested and charged with making a
terroristic threat against DHR; she said that she had pleaded guilty to a
lesser charge of harassment in October 2022. The mother explained that
her plea of guilty in October 2022 resolved both the terroristic-threat
charge and the 2018 trespassing charge. Finally, the mother admitted
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that she had been arrested in October 2022 on a charge of possession of
a controlled substance when she was found to be in possession of
methamphetamine during a traffic stop. The record contains November
2022 orders entered by the Houston Circuit Court revoking the mother's
probation and ordering her to serve the remainder of her 24-month
sentence in Houston County Community Corrections.
Although she admitted that she "sometimes didn't cooperate with
DHR" and that she had not been compliant with services during the first
two years of DHR's involvement, the mother said that she had been
taking "drug classes" and that she was compliant with SpectraCare
counseling, which is presumably counseling that was required by
Houston County Community Corrections. She denied having made any
threats toward DHR personnel. She said that she had shown "a lot of
emotion by crying and frustration." She admitted, however, that she had
pleaded guilty to the harassment charge arising from DHR's accusation
that she had threatened DHR personnel.
The mother indicated that she had provided DHR with a list of
relatives. She testified that, in her opinion, DHR had not contacted those
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relatives because, she said, the relatives kept calling her and asking
whether she had spoken with her social worker. She also indicated that
certain relatives had attempted to intervene in the termination-of-
parental-rights action. In fact, the record reflects that seven persons --
the maternal great-great grandmother, L.W., A.B., C.T., C.H., J.K., and
C.M. -- filed pro se motions to intervene. The motions filed by the
maternal great-great grandmother, L.W., A.B., C.T., C.H., and J.K. were
all handwritten and stated, generally, that each potential intervenor was
willing and able to assume placement and/or custody of the child. C.T. is
an aunt of the mother; L.W. described herself as the child's cousin; A.B.
explained that she was the child's maternal second cousin and stated that
she loved the child "like her own"; C.H. stated that the child was very
familiar with her; and J.K. stated that she had tried contacting "you
guys," which, presumably, was a reference to DHR, "over and over." The
motion filed by C.M. was typewritten, identified her as the child's
biological aunt, and stated that she had "a sustained, substantial and
sincere interest in the welfare of the child." DHR filed no response to any
of the motions to intervene. The juvenile court denied each of the seven
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motions to intervene without elaboration within a week after each was
filed.
The mother admitted that, on the advice of her criminal attorney,
she had not maintained contact with DHR for several months after DHR
swore out the warrant alleging that the mother had made a terroristic
threat. She said that, after she had resolved that criminal charge by
pleading guilty to harassment in October 2022, she had attempted to
contact DHR. She said that her telephone calls were never answered and
that she had not received any response to voicemails that she had left for
her caseworkers. She admitted that, because she was incarcerated at the
Houston County Community Corrections Center, she had not been living
at the residence at the address that DHR had for her. However, she said
that she still received her mail at that address.
The mother opined that she would soon be released from Houston
County Community Corrections because she was in compliance with the
requirements of that program. She testified that she had two jobs, but
she later indicated that she had only one job. Although she testified that
she could live with an unnamed aunt after her release, she said that she
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was making efforts to secure her own residence and that she might, in
fact, be able to secure that residence before she was released. She
explained that she had received an income-tax refund of either $11,000
or $15,000 and that that refund had been seized and used to satisfy her
child-support obligation.
On appeal, the mother first challenges the sufficiency of the
evidence supporting the conclusion that she was, as of the time of the
trial, unable or unwilling to perform her responsibilities as parent of the
child. Secondly, the mother argues that the juvenile court could not have
concluded that no viable alternative to the termination of her parental
rights existed because DHR had not established that it had investigated
and rejected all the mother's relatives. We find the mother's second
argument dispositive of this appeal.
DHR is required to investigate potential relative resources to
determine whether there exists a viable alternative to the termination of
a parent's parental rights. See Ex parte J.R., 896 So. 2d 416, 428 (Ala.
2004).
"With regard to the possibility of placing a child with a
relative as an alternative to the termination of a parent's
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parental rights, this court has held that ' " 'DHR must present
"evidence of recent attempts to locate viable alternatives in
order to establish that termination of parental rights is the
least dramatic alternative." ' " ' J.F.S. v. Mobile Cnty. Dep't of
Hum. Res., 38 So. 3d 75, 78 (Ala. Civ. App. 2009) (quoting C.T.
v. Calhoun Cnty. Dep't of Hum. Res., 8 So. 3d 984, 987 (Ala.
Civ. App. 2008), quoting in turn V.M. v. State Dep't of Hum.
Res., 710 So. 2d 915, 921 (Ala. Civ. App. 1998), quoting in turn
Bowman v. State Dep't of Hum. Res., 534 So. 2d 304, 306 (Ala.
Civ. App. 1988)) (emphasis omitted). See also V.M. v. State
Dep't of Hum. Res., 710 So. 2d 915 (Ala. Civ. App. 1998)
(same). DHR, and not a possible relative custodian, has the
burden of initiating an investigation into the suitability of a
possible relative placement for a child. D.S.S. v. Clay Cnty.
Dep't of Hum. Res., 755 So. 2d 584, 591 (Ala. Civ. App. 1999)."
A.R.H.B. v. Madison Cnty. Dep't of Hum. Res., [Ms. CL-2022-0541, Dec.
16, 2022] ___ So. 3d ___, ___ (Ala. Civ. App. 2022).
Certainly, a potential resource may not be viable for many reasons,
including lacking a relationship with the child at issue, medical issues,
lack of financial ability, conduct, or a lack of protective capacity. See,
e.g., C.P. v. Cullman Cnty. Dep't of Hum. Res., 203 So. 3d 1261, 1268
(Ala. Civ. App. 2016) (determining that juvenile court could have rejected
a paternal grandmother as a suitable custodian because she had enabled
the father's behavior and had medical issues); B.D.S. v. Calhoun Cnty.
Dep't of Hum. Res., 881 So. 2d 1042, 1055 (Ala. Civ. App. 2003)
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(determining that a juvenile court could have rejected certain relatives
because of the lack of financial ability to assume custody of a sibling
group and another relative because of evidence indicating that the
children had witnessed domestic violence in that relative's home). In
addition, the juvenile court may consider whether a particular relative
placement will serve the best interest of the child. See D.F.H. v. State
Dep't of Hum. Res., 51 So. 3d 1081, 1091 (Ala. Civ. App. 2010)
(determining that a juvenile court could properly reject relatives as
placement alternatives when the children did not desire to be placed with
those relatives and threatened to run away if placed in their home).
However, the record must contain evidence supporting the basis for the
rejection of a potential relative resource.
In addition, a juvenile court may reject a potential relative resource
if the permanency plan for the child is adoption by current foster parents
and if the relative "did not attempt to care for the child or obtain custody
of the child within four months of the child being removed from the
custody of the parents or placed in foster care, if the removal was known
to the relative." Ala. Code 1975, § 12-15-319(c)(1). We have recently
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explained that § 12-15-319(c) does not "alleviate[] DHR's burden of
locating and investigating possible relative resources for a child."
A.R.H.B., ___ So. 3d at ___. Of course, the record must contain evidence
to support the juvenile court's application of § 12-15-319(c). Id.
DHR asserts that it established that its personnel had failed to
locate potential relatives and also contends that the juvenile court's
denial of the several motions to intervene supports the juvenile court's
conclusion that no viable alternative to the termination of the mother's
parental rights existed. The record in the present case contains only
minimal information regarding DHR's attempts to locate potential
relative placements for the child. Although Nelson explained that the
maternal great-great grandmother's failure to abide by the safety plan
prevented her consideration as a permanent relative resource, Nelson
could not recall whether she had been provided a list of potential relatives
or, if she had, whether she had assessed any other persons as potential
placements, as was her usual practice. Bryan indicated that she had
performed a search for potential relatives of the mother, but she never
answered the question regarding what that search yielded. Neither
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caseworker could recall the names of any potential relatives other than
the maternal great-aunt and the maternal great-great grandmother and
neither caseworker testified that any of the relatives who attempted to
intervene, other than the maternal great-great grandmother, were
unsuitable. In fact, neither Nelson nor Bryan indicated that they were
aware of the existence of any of the potential intervenors, except for the
maternal great-great grandmother. In addition, DHR did not file any
responses to the motions to intervene. The juvenile court did not hold a
hearing on any of the motions to intervene, so it could not have
determined whether those relatives had made attempts to contact DHR
or to offer to care for the child at any point during the pendency of the
underlying dependency action or when any of those relatives learned
about the child's removal from the custody of the mother. Given Nelson's
equivocal testimony regarding whether the mother provided the names
of relatives to DHR, Bryan's failure to affirmatively testify regarding the
results of the Accurint search when questioned about it, the mother's
testimony that she had provided a list of relatives to DHR, the mother's
testimony that DHR had not contacted those relatives, and the fact that
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six additional persons moved to intervene in the termination-of-parental-
rights action, the record lacks clear and convincing evidence that DHR
performed its duty to investigate potential relative resources or to
support the juvenile court's conclusion that no viable alternatives to the
termination of the mother's parental rights existed.
Accordingly, because DHR failed to present evidence to support a
conclusion that DHR properly investigated viable alternatives to the
termination of the mother's parental rights, we reverse the juvenile
court's judgment. See A.R.H.B., ___ So. 3d at ___.
REVERSED AND REMANDED.
Moore, Hanson, and Fridy, JJ., concur.
Thompson, P.J., dissents, with opinion.
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THOMPSON, Presiding Judge, dissenting.
I respectfully dissent from the majority's decision to reverse the
judgment of the Houston Juvenile Court ("the juvenile court")
terminating the parental rights of P.R. ("the mother") to T.C. ("the child").
Our supreme court and this court have repeatedly held that an
appellate court will not reverse a trial court on a ground neither
presented to the trial court nor argued by the appellant on appeal as a
basis for reversal. Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala.
1992); see also Kids Klub, Inc. v. State Dep't of Hum. Res., 874 So. 2d
1075 (Ala. Civ. App. 2003)(explaining that this court will not reverse on
a ground not argued on appeal); and Morris v. Padgett, 890 So. 2d 157(Ala. Civ. App. 2004)(observing that this court will not create a legal
argument for the parties). Rule 28(a)(10), Ala. R. App. P., provides that
an appellate argument must contain supporting authority for the
grounds upon which an appellant seeks reversal of a judgment. See also
S.B. v. Saint James Sch., 959 So. 2d 72, 89 (Ala. 2006) (stating that
general propositions of law are not considered "supporting authority" for
purposes of Rule 28).
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The majority reverses the juvenile court's judgment in favor of the
Houston County Department of Human Resources ("DHR") "because
DHR failed to present evidence to support a conclusion that DHR
properly investigated viable alternatives to the termination of the
mother's parental rights." ___ So. 3d at ___. The mother, however, did
not present this argument in the juvenile court or on appeal.
In the juvenile court, the mother did not file any pleadings or argue
at the final hearing that DHR did not adequately investigate viable
alternatives to the termination of her parental rights. Consequently, I do
not believe that the mother sufficiently apprised the juvenile court of the
reason upon which the majority bases its reversal. See Ex parte Works,
640 So. 2d 1056, 1058 (Ala. 1994)(recognizing that the purpose of
objections at trial is to provide the trial court with an opportunity to
correct an alleged error before a judgment is issued). In her brief on
appeal, the mother cites general propositions of law addressing family
integrity and the need to explore less drastic measures and to examine
viable alternatives to termination of a parent's parental rights. She then
offers two paragraphs in support of her contention that "a viable
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alternative did in fact exist." She references her testimony that relatives
are available, the motions to intervene filed by seven relatives two
months before the final hearing, the lack of evidence explaining the
juvenile court's reason for denying the motions to intervene, and the
testimony of Torrie Nelson, a DHR caseworker, who stated that she could
not recall specific facts about possible relatives other than two relatives
who were part of an earlier safety plan. I cannot conclude that the
mother's general statement in her appellate brief that "DHR … failed to
assess all of those individuals" without citation to any law establishing
that DHR has a duty to investigate potential relative resources
adequately presents a legal argument supporting reversal of the juvenile
court's judgment.
" ' "It is not the function of the appellate courts to
develop, research, and support an appellant's
arguments." ' Knight v. Knight, 214 So. 3d 1207,
1210 (Ala. Civ. App. 2016)(quoting M.F. v. W.W.,
144 So. 3d 366, 368 (Ala. Civ. App. 2013)).
Furthermore,
" '[i]n the absence of an argument
supported by legal authority, an
alleged error of law committed by a
trial court is considered "essentially
unchallenged on appeal." [Walden v.
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Hutchinson, 987 So. 2d 1109, 1120
(Ala. 2007)]. An appellant waives the
right to appellate review of a ruling on
a question of law when the appellant
fails to cite any legal authority on that
point as required by Rule 28(a)(10),
Ala. R. App. P. Slack v. Stream, 988 So.
2d 516, 533-34 (Ala. 2008). This court
cannot cure that deficiency by creating
legal arguments for the appellant, see
Spradlin v. Spradlin, 601 So. 2d 76, 78-
79 (Ala. 1992), because it is not the
function of this court to perform an
appellant's legal research. City of
Birmingham v. Business Realty Inv.
Co., 722 So. 2d 747, 752 (Ala. 1998).'
"State v. Pressley, 100 So. 3d 1058, 1070-71 (Ala. Civ. App.
2012)(Moore, J., dissenting)."
Watkins v. Lee, 227 So. 3d 84, 90 (Ala. Civ. App. 2017)
Accordingly, because the mother did not argue in the juvenile court
and, in my opinion, the mother does not adequately argue on appeal the
reason upon which the majority reverses the juvenile court's judgment, I
am not inclined to reverse the juvenile court's judgment for the reason
set forth by the majority.
Moreover, even if I agreed that consideration of this ground was
proper, I conclude that any error created by not requiring DHR to
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investigate the mother's proposed relative placements was harmless. In
my opinion, sufficient evidence supports the juvenile court's
determination that termination of the mother's parental rights was in
the best interest of the child.
A parent's attempt at reunification should be accomplished in a
timely manner. Talladega Cnty. Dep't of Hum. Res. v. M.E.P., 975 So. 2d
370, 374 (Ala. Civ. App. 2007)(explaining that "there is a point at which
the child's need for permanency and stability will overcome the parent's
rights to rehabilitation by [the Department of Human Resources]").
Generally, a parent's rehabilitation should be accomplished 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)(stating that, "when [the
Department of Human Resources] 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").
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CL-2023-0272
In this case, the record includes clear and convincing evidence that
the mother had not meaningfully cooperated with DHR by adjusting her
circumstances to meet the needs of the child. DHR became involved with
the mother and the child after receiving a report indicating that the
mother was using illegal substances in the child's presence. After an
investigation, the mother was "indicated" for "chemical endangerment."
The child has been out of the mother's care since 2018 and in DHR's
custody for 30 months. During that time the mother has not participated
consistently in DHR services, which included drug testing, and, most
significantly, had been arrested and convicted for possession of an illegal
substance within eight months of the final hearing. The juvenile court
could have considered the mother's failure to rehabilitate herself within
that typical 12-month period and her recent arrest and conviction for
possession of an illegal substance to be evidence indicating that the
mother would not, in the foreseeable future, be free from the conduct or
condition that resulted in the child's removal from the home. Thus, the
juvenile court had sufficient evidence to support its conclusion that the
mother had not adjusted her circumstances to meet the needs of the child
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CL-2023-0272
and that her conduct or condition was unlikely to change in the
foreseeable future. 2 See M.W. v. Houston Cnty. Dep't of Hum. Res., 773
So. 2d 484, 487 (Ala. Civ. App. 2000)("At some point, however, the child's
need for permanency and stability must overcome the parent's good-faith
but unsuccessful attempts to become a suitable parent.").
Additionally, although "a juvenile court cannot terminate parental
rights when a viable alternative exists," see K.R.S. v. DeKalb Cnty. Dep't
of Hum. Res., 236 So. 3d 910, 914 (Ala. Civ. App. 2017), the existence of
a relative as a potentially viable placement alternative does not, in and
of itself, prevent the juvenile court from terminating the mother's
parental rights. For example, § 12-15-319(c), Ala. Code 1975, provides:
"The juvenile court is not required to consider a relative
to be a candidate for legal guardian of the child in a
proceeding for termination of parental rights if both of the
following circumstances exist:
2In general, courts disfavor leaving a child in foster care indefinitely
while a parent continues to make attempts at reunification. D.V. v.
Colbert Cnty. Dep't of Hum. Res., 121 So. 3d 370, 380-81 (Ala. Civ. App.
2012). The mother has not argued that any exception to that general rule
should apply under the facts of this case, and the record contains no
evidence that the mother's condition would improve in the foreseeable
future.
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CL-2023-0272
"(1) The relative did not attempt to care for
the child or obtain custody of the child within four
months of the child being removed from the
custody of the parents or placed in foster care, if
the removal was known to the relative.
"(2) The goal of the current permanency plan
formulated by the Department of Human
Resources is adoption by the current foster
parents."
Before the legislature's adoption of § 12-15-319(c) in 2020, this court in
B.S. v. Cullman County Department of Human Resources, 865 So. 2d
1188, 1197 (Ala. Civ. App. 2003), held that the last-minute identification
of a possible relative resource "was not sufficient" to establish "a truly
viable alternative to the termination of the mother's parental rights." See
also C.T. v. Calhoun Cnty. Dep't of Hum. Res., 8 So. 3d 984, 989 (Ala. Civ.
App. 2008). Therefore, the mere existence of a potential relative
placement does not necessarily preclude the juvenile court from
terminating a parent's parental rights.
Although the juvenile court was not precluded from considering the
relatives that moved to intervene as alternative relative placements, the
record supports the juvenile court's conclusion that none of these
relatives were a viable alternative to termination of the mother's
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parental rights. As the majority recognizes, approximately two months
before the final hearing, seven relatives moved to intervene. The record
does not indicate that any of these individuals, who moved to intervene,
had been unaware until recently that the child had been removed from
P.R.'s custody and placed in foster care, that they had contacted DHR
about becoming a relative placement, or that they had a relationship with
the child. The child was born in 2017. At the time of the final hearing,
the child had been in DHR's custody for 30 months and had resided in
the foster parents' home for the past 25 months. B.M., the foster mother,
testified that the child was thriving in her home and that she and her
husband planned on adopting the child. The mother, on the other hand,
had not visited the child in the past seven months and, at the time of the
hearing, was serving a community-corrections sentence. Given that the
reason for DHR's involvement with the mother was a consequence of the
mother's drug use, that she was recently convicted for possession of an
illegal substance, and that she exhibited other conduct indicating that
reunification with the child was not a foreseeable likelihood, the juvenile
court could have concluded that even if a relative placement existed, the
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relative placement was not in the best interest of the child because the
child needed permanency. Accordingly, the juvenile court could have
concluded that these possible relative resources for the child did not
constitute the advancement of a viable alternative to the termination of
her parental rights.
Because I conclude from my review of the record that sufficient
evidence was presented to support the juvenile court's decision that the
child was dependent, i.e., that the statutory grounds set forth in § 12-15-
319, Ala. Code 1975, were met, and that no viable alternative to
termination of the mother's parental rights existed, I would affirm the
juvenile court's judgment. Therefore, I respectfully dissent.
32