Montgomery County Department of Human Resources v. A.S.N.

MOORE, Judge,

concurring in the rationale in part and concurring in the result.

The Montgomery County Department of Human Resources (“DHR”) appeals from judgments of the Montgomery Juvenile Court (“the juvenile court”) declining to terminate the parental rights of A.S.N. (“the mother”) and J.E.C. (“the father”) to T.C., J.N., and A.C. ("the. children”). In those judgments, the juvenile court concluded that DHR had failed to present clear and convincing evidence of grounds for termination and that DHR had failed to prove that no viable alternatives existed to termination of the parents’ parental rights. See Ex parte Beasley, 564 So.2d 950 (Ala.1990) (setting out .State’s burden in a termination-of-parental-rights proceeding). .

*676 Standard of Review

The law presumes that natural parents will adequately perform their parental responsibilities to and for their children so that natural parents ordinarily should have custody of their children. See Ex parte E.R.G., 73 So.Bd 634 (Ala.2011). When the State petitions a court to terminate parental rights, the State must, as a matter of constitutional law, overcome that presumption by presenting clear and convincing evidence of parental unfitness. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Consistent with that standard, § 12-15-319, Ala.Code 1975, provides, in pertinent part:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them 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 parents.”

Conversely, a juvenile court may correctly refuse to terminate parental rights if it is not clearly convinced by the evidence that the parent cannot or will not adequately parent the child.

In this case, DHR argues that the juvenile court erred in determining that DHR failed to sustain its burden of proof. I have not located any Alabama caselaw specifically addressing the standard of review this court should employ to determine whether a juvenile court erred in concluding that DHR did not prove grounds for termination by sufficient evidence. As a general rule, this court may not reweigh the evidence in a termination-of-parental-rights proceeding. See Ex parte T.V., 971 So.2d 1 (Ala.2007). Thus, it would seem that this court can determine only that the juvenile court erred in its weighing of the evidence if DHR is entitled to a judgment as a matter of law, i.e., that no evidence supports the factual determinations necessary to the judgment and that the evidence supports only a determination that grounds for termination exist. See In re A.L.D.H., 373 S.W.3d 187, 192-93 (Tex. App.2012). By that standard, this court can reverse a juvenile court’s judgment and order a juvenile court to terminate the parental rights of a parent only if the undisputed evidence requires that legal conclusion. I apply that standard when considering DHR’s appeal in this case.

The Father

DHR first argues that it proved that the parents had abandoned the children. Section 12-15-301(1), Ala.Code 1975, defines “abandonment” as:

“A voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his or her presence, care, love, protection, maintenance, or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.”

In J.L. v. State Department of Human Resources, 961 So.2d 839, 848-49 (Ala.Civ. App.2007), this court recognized that former § 26-18-3(1), Ala.Code 1975, the identically worded predecessor to § 12-15-301(1), established several alternative definitions of abandonment. Each of those definitions depend on the parents’ voluntary, intentional, and unjustified conduct. See H.H. v. Baldwin Cty. Dep’t of Human Res., 989 So.2d 1094, 1103 (Ala.Civ.App. 2007) (opinion on return to remand) (Per Moore, J., with two Judges concurring in the result).

I agree with the main opinion that the evidence indisputably shows that the fa*677ther had abandoned the children. The record indicates that, when the children were removed from their home in July 2011, they were not residing with the father. DHR arranged weekly supervised visits between the children and the parents, but both the father and the mother complained of difficulties in obtaining transportation from Lapine, where the parents resided, to Montgomery, where the visits occurred. Given the lack of available public transportation, DHR arranged case-aide services to ameliorate that problem; however, DHR had only limited transportation resources ■ available, so when the parents failed to contact DHR or to attend visits on March 28, April 4, and April 11, 2012, DHR discontinued case-aide services. Despite the discontinuation of those services, the parents continued to visit with the children, often borrowing a relative’s automobile for transportation, until visitation was suspended in August 2012 when the parents failed to comply with their drug-screen protocol. At some point, visitation, resumed. The parents last visited with T.C. in September 2013. The parents missed visits with J.N. and A.C. on March .13, March 27, and April 10, 2014, and they last visited with J.N. and AC. on April 13, 2014. On August 11, 2014, DHR determined that the parents would have to produce negative drug screens in order, to have their visitation reinstated. The parents never complied with that condition.

DHR conducted regular individualized-service-plan (“ISP”) meetings. The father initially attended the ISP meetings .in person or by telephone, but he last attended an ISP meeting on February 28, 2013. At the trial, the father’s appointed counsel informed the juvenile court that he had not communicated with the father since two days before that ISP meeting. DHR completely lost contact with the father after April 13, 2014, despite repeated efforts to locate the father. In August 2014, Latoya Harrell, the DHR social worker overseeing the children’s case, visited the father’s last known address and found that the former residence had been completely razed. Harrell inquired of the mother and the children’s paternal grandmother regarding the father’s whereabouts, but she could not obtain a valid address for the father. In June 2014, DHR amended its petitions to allege that the father had abandoned the children, and DHR served those amended petitions on the father by publication. The father did not attend the trial.

In its judgments, the juvenile court did not address the claim that the father had abandoned the children. However, the evidence shows, without dispute, that the father had completely withdrawn from the children. The record contains no evidence to justify the complete and long-standing lack of contact between the father and the children. In the absence of such countervailing evidence, the only factual determination that could be reached is that the father had withheld from his children “his ... presence, care, love, protection, maintenance, or the opportunity for the display of filial affection,” § 12-15-301(1), without good cause or excuse and that he had faded to claim his parental right to visitation. See § 12-15-102(23), Ala.Code 1975 (defining “residual parental rights” to include the right to visitation). As such, the only legal conclusions to be drawn from the undisputed evidence is that the father had abandoned the children and that the father was unwilling to discharge his parental responsibilities to and for the children.

Although under § 12-15-319(a)(l) proof of reasonable efforts is not required when a parent has abandoned a child, DHR does not argue that it should have been excused from making reasonable efforts to reunite the father with the children on the basis of his abandonment. Because DHR has *678waived that argument, I do not join in that aspect of the main opinion that refuses to address the reasonableness of DHR’s family-reunification efforts with regard to the father. 206 So.3d at 672. However, I do agree with the main opinion that DHR did use reasonable efforts, as explained later.

The Mother

I agree with the main opinion that DHR did not claim that the mother had abandoned the children at trial. 206 So.3d at 671. On appeal, DHR argues that it conclusively proved other grounds- for termination of the mother’s parental rights.

Despite the injuries to T.G., the juvenile court clearly did not consider the mother to be an abusive . or neglectful, parent. DHR argues that the juvenile court should have applied § 12-15-319(a)(6), which provides:

“In determining whether or not the parents are unable or unwilling to discharge their 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:
[[Image here]]
“(6) Unexplained serious physical injury to the child under those circumstances as would indicate that the injuries resulted from the intentional conduct or willful neglect of the parent.”

However, the juvenile court reasonably could have determined that T.C.’s serious physical injuries were not “unexplained.” The mother consistently reported that she had left T.C., who was less than three weeks old at the time, alone on a bed while she went to the restroom. The mother later found that T.C.’s right leg was swollen and surmised that one or both of her other children, who were then almost two and three years old, might have jumped on the bed and accidentally fell on T.C. The juvenile court found in its judgments that the mother’s version of events had not been challenged.

Staff from Children’s Hospital of Alabama, where T.C. was treated for his injuries, notified DHR of its suspicions that T.C.’s injuries had resulted from “nonacci-dental trauma.” See § 26-14-3, Ala.Code 1976 (requiring all hospitals to report suspected child abuse or neglect). DHR conducted a child-abuse-and-neglect investigation and issued a report that “indicated” the mother for inadequate supervision. See § 26—14—8(a)(1), Ala.Code 1975 (“Indicated” means “[wjhen credible evidence and professional judgment substantiates that an alleged perpetrator is responsible for child abuse or neglect.”). However, Harrell testified that no one was ever convicted of a crime as a result of T.C.’s injuries and that “[tjhere was no allegation that [the mother] did this to [T.C.].” DHR maintains that the mother “demonstrated a lack of supervision and protective capacity that placed T.C. and his siblings at risk of harm” and that the circumstances surrounding, and the nature of, T.C.’s injuries suggest that they resulted from the intentional conduct or willful neglect of the mother. However, the medical records refute DHR’s contention that T.C. suffered a spiral femoral fracture, which would most likely result from a twisting of the bone consistent with intentional abuse, and, although the evidence could be viewed differently, the juvenile court reasonably could have determined that the circumstances did not indicate any intentional misconduct or willful neglect on the mother’s part in leaving T.C. unsupervised while she went to the restroom.

The mother did not immediately seek medical treatment for T.C. DHR argues that the mother’s behavior was reprehensible. DHR does not refute the juvenile court’s findings that the mother contacted her physician the day after the injuries *679and that the mother took the child to the physician and a Montgomery hospital emergency room within two days of the injuries when transportation became available. DHR presented no evidence indicating that the mother completely failed to treat T.C. during the two days following the injury. DHR also did not present any evidence indicating that the delay in treatment caused any further injury to T.C. Although the juvenile court could have reached the same conclusion as DHR, the juvenile court reasonably also could have determined that DHR had failed to present clear and convincing evidence indicating that the mother had willfully neglected the medical needs of T.C.

DHR maintains that the juvenile court should have terminated the parental rights of the mother based on her substance-abuse problem, her low cognitive functioning, her inability to meet T.C.’s special needs, her failure to pay child support, her inconsistent visitation and communication with the children, and her noncompliance with DHR’S rehabilitation plan. In its judgments, the juvenile court addressed most of' those factors, particularly acknowledging that parental drug use is not in the best interests of children, but the juvenile court ultimately concluded that the mother’s parental rights should not be terminated because DHR did not make reasonable efforts to correct the mother’s deficiencies, which finding is addressed below.

Reasonable Efforts

Many of the juvenile court’s findings regarding reasonable efforts arise from its review of materials not contained in the record. In its judgments, the juvenile court refers to a January 26, -2015, court report, a domestic-violence assessment, a psychological evaluation, and a police report, none of which was admitted into evidence and, with the exception of the police report, none of which appear in the appellate récord-. Disregarding the contents of those documents, the evidence in the record supports only one possible determination, that DHR made reasonable efforts.

After removing the children from the custody of the mother, DHR held an ISP meeting two days later. At that meeting, it was explained to the parents that DHR had become involved with the family as a result of the injuries that had been sustained by T.C. DHR advised the parents that, in order to end DHR’S involvement, the parents would have to cooperate with law enforcement and DHR in their investigation of those injuries, as well as remain “drug-free, obtain and demonstrate appropriate parenting knowledge and skills, receive and follow through with recommendations of a domestic violence assessment, maintain appropriate housing, obtain and maintain employment, as well as demonstrate the ability to properly provide for all the needs of their children.” To those ends, DHR directed the parents to undergo a domestic-violence assessment, to submit to drug testing, to undergo parenting classes and demonstrate proper parenting techniques, to maintain a clean home, and to attend weekly visitations.

DHR arranged a domestic-violence assessment for the parents at the Family Sunshine Center, which they completed before October 5, 2011; In that assessment, both parents denied any involvement in domestic violence. . Harrell indicated that DHR did not receive any recommendations for services relating to domestic violence based on the assessment. In thq ISP plan from October 5, 2011, DHR “deleted” any requirement that the parents undergo domestic-violence rehabilitation. In its final judgments, the juvenile court criticized DHR for failing to provide counseling for .the mother to address domestic violence; however, • as the juvenile court itself concluded, the record contains no *680clear and convincing evidence indicating that family-related domestic violence had ever occurred. The juvenile court speculated that the mother may have been a victim of domestic violence or sexual abuse at a young age based solely on information gleaned from, records not admitted into evidence. Extrapolating from that speculative conclusion, the juvenile court further opined that the mother needed counseling to overcome the effects of her alleged abuse in order to effectively parent the children, although no such evidence appears in the record.

At some point before October 5, 2011, DHR referred the parents to parenting classes conducted by an entity named “Tools of Choice.” The parents completed the course work for those classes in approximately May 2012; however, the parents did not take the final written examination. Furthermore, Tools of Choice requires parents to demonstrate the parenting skills they learn in the home under the supervision of an instructor within three months of the completion of the course work. The parents never started the in-home supervision portion of the parenting classes, and, despite DHR’s instruction, the parents never contacted Tools of Choice to complete the parenting classes.

In its judgments, the juvenile court found that DHR had not used reasonable efforts “as to the parenting factor. Closely related to this failure, is the failure to provide transportation for the parties.” The record contains no evidence indicating that the parents missed a single parenting class due to transportation problems. To the 'Contrary, the record shows, without dispute, that the parents attended and completed the course work at Tools of Choice. The record contains no evidence indicating why the parents failed to take the final written examination, much less evidence that could support a finding that that failure resulted from some act or omission of DHR. Finally, any transportation problem would not have prevented the parents from participating in the last part of the parenting classes, which was supposed to take place in the parents’ home.

Apparently as part of its routine procedure, DHR directed the parents to submit to drug testing. On January 18, 2012, the parents tested positive for illegal drugs and DHR referred them both to a Montgomery drug-rehabilitation center. The father began treatment in July 2012, and the mother entered an outpatient-treatment program at a separate facility in August 2012. The mother was discharged on December 26, 2012, for consistently missing drug screens and therapy sessions. The father tested positive for cocaine in June 2013, causing cessation of the services being offered to him by “FOCUS.” Although DHR again required the father to complete drug treatment, the father did not fulfill that condition before he disappeared. In January 2014, the mother tested positive for cocaine. DHR referred the mother to another drug-treatment facility closer to the mother’s home, but the mother never completed a drug-rehabilitation course.

The juvenile court questioned how the parents could attend drug rehabilitation without reliable transportation and determined that DHR did not use reasonable efforts to provide the parents that transportation. As explained above, DHR did provide transportation to the parents to facilitate visitation in early 2012, but the parents repeatedly failed to avail themselves of that service, which was available on only a limited basis. The record further shows that, afterward, DHR changed the ISP plan to require the parents to obtain their own reliable transportation. When a parent has rebuffed aid, such as transportation services, it is reasonable for *681DHR to discontinue that form of assistance, see generally A.M.F. v. Tuscaloosa Cty. Dep’t of Human Res., 75 So.3d 1206, 1212 (Ala.Civ.App.2011), particularly at such a late stage in the rehabilitation process. See M.A.J. v. S.F., 994 So.2d 280, 291 (Ala.Civ.App.2008) (establishing one year as the presumptive deadline for parental rehabilitation). In its judgments, the juvenile court completely overlooked the parents’ culpability for their loss of transportation services.

The juvenile court also speculated that the mother’s depression might have contributed to her failure to complete drug counseling. The record contains a brief reference to the a diagnosis of a depressive disorder, which was contained in the psychological evaluation that was not admitted into evidence. Harrell testified that she had seen no signs that the mother’s depression had prevented her from functioning and meeting her ISP goals. The juvenile court received no other evidence regarding the effect of the mother’s depression. Thus, the juvenile court had no evidentiary basis to excuse the mother from completing drug rehabilitation on the basis of her depression.

As for housing, DHR consistently required the parents to maintain clean and suitable shelter for the children. The record shows that the father’s last residence had been destroyed and that DHR never acquired information as to his current whereabouts. Before July 9, 2011, the mother and the children resided in a home that they shared with the children’s paternal grandmother and paternal great-grandmother. The mother continued to reside in that home for some period before moving in with her grandmother. Nothing in the record substantiates the juvenile court’s finding that DHR required the mother to live independently, that DHR “held it against the [mjother” that she did not live independently, or that DHR otherwise considered “multi-generational” housing to be per se inadequate. Harrell testified that the mother would not allow DHR to inspect her current home to determine its suitability because, as the mother informed Harrell, “things were not in order in that house.” Obviously, without a home inspection, DHR could not determine what efforts it needed to undertake to assist the mother in upgrading the house, and it would not have been reasonable to expect DHR to take any action to overcome the mother’s lack of cooperation.

The juvenile court criticized DHR for failing to do anything to assist the parents in securing employment other than referring the mother to Vocational Rehabilitation Services (“VRS”). DHR itself is not an employment agency. Other than referring a parent to the state agency with particular employment expertise or making funds available to pursue the vocational-rehabilitation plan recommended by that agency, DHR can do nothing to vocationally rehabilitate a parent. The record contains no evidence indicating that DHR failed to act on any VRS recommendation. The juvenile court erroneously relied on information from the psychological evaluation that was not admitted into evidence to determine that DHR somehow frustrated the mother’s reeducation and vocational goals.

Lastly, the undisputed evidence shows that, despite her low intellectual functioning, the mother did not require any special accommodations to assist with her rehabilitation. DHR did not violate its duty to make reasonable efforts by failing to modify its ISP to account for any mental deficiency the mother might have had.

In this case, the undisputed evidence shows that DHR made a fair and serious attempt to correct the parental conduct, conditions, and circumstances that separated the family. See H.H. v. Baldwin Cty. *682Dep’t of Human Res,, 989 So.2d at 1104-05. DHR identified the obstacles to family reunification, communicated its concerns to the parents, developed a reasonable plan tailored toward eliminating those obstacles, and continuously monitored and evaluated the progress of the parents. Id. at 1105. The law requires only reasonable, not maximal, efforts by DHR. M.A.J., 994 So.2d at 291. The juvenile court clearly erred in finding that DHR did not meet its statutory duty.

Remand Instructions

The main opinion instructs the juvenile court to enter judgments terminating the parental rights of the mother and the father as expeditiously as possible. 206 So.3d at 675. Based on the peculiar facts of the case, I concur with that instruction. As a matter of law, the father is unwilling to discharge his parental responsibilities, as proven by the undisputed evidence of his abandonment of the children. The mother might not have intentionally harmed T.C, or willfully neglected his medical care, but the undisputed evidence shows a lack of effort by the mother to overcome her drug addiction, to provide the children with a suitable home, to consistently visit with and communicate with the children, and to otherwise adjust her circumstances to meet the needs of the children. See § 12-15-319(a).

DHR presented undisputed evidence of several factors that our legislature has mandated that juvenile courts must consider when deciding whether to terminate parental rights. The parents did not attend the trial. Their attorneys effectively cross-examined DHR’S witnesses on several points, but they did not rebut the evidence proving that the father had abandoned the children and that the mother could not or would not rehabilitate herself to assume a proper parental role. Applying the law to the undisputed facts, termination of the parents’ parental rights is the only correct legal conclusion.