B.A.M. v. Cullman County Department of Human Resources

150 So. 3d 782, 2014 WL 888527, 2014 Ala. Civ. App. LEXIS 42
CourtCourt of Civil Appeals of Alabama
DecidedMarch 7, 2014
Docket2130014
StatusPublished
Cited by10 cases

This text of 150 So. 3d 782 (B.A.M. v. Cullman County Department of Human Resources) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.A.M. v. Cullman County Department of Human Resources, 150 So. 3d 782, 2014 WL 888527, 2014 Ala. Civ. App. LEXIS 42 (Ala. Ct. App. 2014).

Opinion

PER CURIAM.

B.A.M. (“the mother”) appeals from a judgment entered by the Cullman Juvenile Court (“the juvenile court”) terminating her parental rights to E.A. (“the child”). We reverse.

On July 18, 2012, the Cullman County Department of Human Resources (“DHR”) petitioned the juvenile court to terminate the parental rights of the mother and W.H.A. (“the father”). On August 13, and September 11, 2013, the juvenile court'conducted a hearing on DHR’s petition. The father, who was in prison, did not attend the hearing, and his parental rights to the child are not at issue in this appeal. On September 17, 2013, the juvenile court entered its judgment terminating the mother’s parental rights. On October 1, 2013, the mother filed a postjudgment motion; on that same date, the mother filed a notice of appeal. On October 2, 2013, the juvenile court denied, without a hearing, the mother’s postjudgment motion, and her notice of appeal was deemed filed on that date. See Rule 4(a)(5), Ala. R.App. P.

On appeal, the mother first argues that the juvenile court erred in denying her postjudgment motion without a hearing. However, the record indicates that the mother did not request a hearing on her postjudgment motion. As a result, she waived her right to a hearing. See Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989); and Frederick v. Strickland, 386 So.2d 1150,1152 (Ala.Civ.App.1980).

[784]*784The mother next argues that the juvenile court erred in finding grounds for termination of her parental rights. The statutory grounds for terminating parental rights, i.e., for a finding that the child is dependent, are set forth in § 12-15-319, Ala.Code 1975, which 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.”

Pursuant to the terms of that statute, a juvenile court may terminate a parent’s parental rights only if clear and convincing evidence shows that the parent is currently unable to discharge his or her parental duties properly, see D.O. v. Calhoun Cnty. Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App.2003), and that the conduct or condition that prevents the parent from assuming or exercising proper care of the child will likely persist in the foreseeable future. See D.M. v. Walker Cnty. Dep’t of Human Res., 919 So.2d 1197, 1211 (Ala.Civ.App.2005).

From the substantial evidence presented in the record, the juvenile court reasonably could have been clearly convinced that the mother lacked the ability to meet the special needs of the child. See Ex parte Mclnish, 47 So.3d 767, 774 (Ala.2008) (explaining the standard of appellate review when the clear-and-convincing-evidence standard applies at trial). The evidence established that the child had been diagnosed with “Attention Deficit Hyperactivity Disorder,” “Oppositional Defiance Disorder,” and autism, and that his serious behavioral issues require a highly structured facility equipped to handle his aggressive behaviors and to monitor and dispense his many medications. According to multiple witnesses, the child’s emotional and behavioral issues, which include hitting, kicking, throwing items, and running away, often had required more than one aide to ensure the child’s safety and the safety of those around him, and the severity of those issues had led multiple professional institutions and foster homes to remove the child from their programs. The child has been diagnosed with a borderline low IQ that requires him to attend special-education classes and with a speech impediment that requires speech therapy. During DHR’s involvement with him, the child had been hospitalized on multiple occasions to regulate his medications and to gain control of his behaviors.

Efforts to keep the child in the home with the mother failed after she repeatedly exhibited an inability to independently control the child, her husband and his mother expressed concerns about the child being in the home, and some of the child’s prescription medication went missing. A family counselor testified that, after working with the mother for 14 months, she found the mother “very cooperative but lacking in skills.” The counselor testified that, despite her own experience, the child’s medication regimen was complicated even for her and that she had concerns about whether the mother, who displayed limited reading ability, could properly administer the child’s medications without help. The counselor testified that it would not be safe for the mother to be alone with the child for any length of time and that she did not believe the mother has sufficient family support to resume care of the child in her home.

[785]*785Nevertheless, we agree with the mother that the juvenile court erred in terminating her parental rights. As the mother lastly argues, parental rights may not be terminated, even if sufficient statutory grounds exist, when some less drastic measure might be employed to preserve the parental relationship without harming the interests of the child. See Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).

“Parents and their children share a fundamental right to family integrity that does not dissolve simply because the parents have not been model parents. Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). That due-process right requires states to use the most narrowly tailored means of achieving the state’s goal of protecting children from parental harm. Roe v. Conn, 417 F.Supp. 769, 779 (M.D.Ala.1976). Thus, if 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 court must explore whether that alternative can be successfully employed instead of terminating parental rights. Id.”

T.D.K. v. L.A.W., 78 So.3d 1006, 1011 (Ala.Civ.App.2011).

The evidence presented to the juvenile court undisputably established that the mother had raised the child continuously since his birth until he was removed from her care at the age of seven. It is undisputed that the mother and the child share a strong bond and that the mother has maintained constant contact and communication with the child while he has been in the care of others. Multiple witnesses agreed that it would- be in the child’s best interest and necessary for his mental health that he and the mother continue to maintain their relationship and communication, even if he is not in her primary custody or care. Multiple witnesses further testified that the child suffers significant emotional distress when his visits with the mother end.

In such cases, this court has held that terminating parental rights could do more harm than good. See, e.g., CM. v. Tuscaloosa Cnty. Dep’t of Human Res., 81 So.3d 391 (Ala.Civ.App.2011).

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Bluebook (online)
150 So. 3d 782, 2014 WL 888527, 2014 Ala. Civ. App. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bam-v-cullman-county-department-of-human-resources-alacivapp-2014.