J.H. v. Cullman County Department of Human Resources

224 So. 3d 188, 2016 WL 6648655, 2016 Ala. Civ. App. LEXIS 284
Court of Civil Appeals of Alabama·Decided November 10, 2016·No. 2150689, 2150690, and 2150701·Published

Opinion

THOMAS, Judge.

J.H. (“the father”) and A.C. (“the mother”) are the unmarried parents of T.L.C. (“the son”), who was born in August 2006. The father is also the father of M.E.H., [190]*190who was born in April 2010 and M.F.H., who was born in February 2012. K.H., the father’s wife, is the mother of M.E.H. and M.F.H. (“the daughters”).

On October 21, 2015, the Cullman County Department of Human Resources (“DHR”) petitioned the Cullman Juvenile Court to terminate the parental rights of the father and the mother to the son (case number JU-09-173.05) and of the father and K.H. to M.E.H. (case number JU-11-240.04) and M.F.H. (case number JU-14-300.02). After a trial on April 11, 2016, the juvenile court entered three separate judgments on April 18, 2016, terminating the father’s and the mother’s parental rights to the son and the father’s and K.H.’s parental rights to the daughters.1 The mother filed a notice of appeal seeking our review of the judgment terminating her parental rights to the son in appeal number 2150701. The father did not file a notice of appeal regarding the judgment terminating his parental rights to the son; however, he filed notices of appeal seeking review of the judgment terminating his parental rights to M.E.H. in appeal number 2150689 and seeking review of the judgment terminating his parental rights to M.F.H. in appeal number 2150690. On August 23, 2016, this court consolidated the three appeals.

The Mother’s Appeal

The juvenile court entered its judgment in case number JU-09-173.05 on April 18, 2016. The mother filed a post-judgment motion seeking to alter, amend, or vacate that judgment on April 29, 2016, which is within the 14 days allowed by the Rules of Juvenile Procedure. See Rule 1(B), Ala. R. Juv. P. (“All postjudgment motions ... must be filed within 14 days after entry of order or judgment and shall not remain pending for more than 14 days.”). The juvenile court denied the mother’s postjudgment motion in case number JU-09-173.05 on May 4, 2016. The mother, therefore, had 14 days, or until May 18, 2016, to file a notice of appeal of the May 4, 2016, denial of her post-judgment motion filed in case number JU-09-173.05. Rule 4(a)(3), Ala. R. App. P. (appeals from judgments of a juvenile court must be filed within 14 days). The mother filed her notice of appeal on May 19, 2016. Although the mother had filed in the juvenile court a motion to proceed in forma pauperis on May 18, 2016, we have explained that, even when such a motion indicates a desire to file a notice of appeal, “[a] motion to proceed in forma pauperis is not a postjudgment motion that tolls the time for filing a notice of appeal.” A.J. v. Cullman Cty. Dep’t of Human Res., 112 So.3d 51, 53 (Ala. Civ. App. 2012).

“ ‘The timely filing of [a] notice of appeal is a jurisdictional act.’ Rudd v. Rudd, 467 So.2d 964, 965 (Ala. Civ. App. 1985); see also Parker v. Parker, 946 So.2d 480, 485 (Ala. Civ. App. 2006) (‘an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived’).”

Kennedy v. Merriman, 963 So.2d 86, 88 (Ala. Civ. App. 2007). Because the mother’s appeal was untimely for the foregoing reasons, we dismiss appeal number 2150701.

The Father’s Appeals

Appeal numbers 2150689 and 2150690 were timely filed. The juvenile court entered its judgments in case numbers JU-11-240.04 and JU-14-300.02 on April 18, 2016, and the father filed postjudgment motions in both actions on April 28, 2016. The juvenile court denied the father’s post-judgment motion in case number JU-11-240.04 on May 4, 2016, and it denied the father’s postjudgment motion in case num[191]*191ber JU-14-300.02 on May 9, 2016. On May 16, 2016, the father filed timely notices of appeal in both actions.

The father seeks this court’s review of whether the juvenile court “erred in terminating [his] parental rights to the [daughters] and [the son] where [the father] demonstrated sufficient parenting skills for a subsequent child in [his] custody.”2 Although the father has included the son in his issue statement, the- father did not file an appeal in case number JU-09-173.04; thus, the judgment terminating his parental rights to the son is not a 'subject of the father’s appeals. The father cites Bowman v. State Department of Human Resources, 534 So.2d 304, 305 (Ala. Civ. App. 1988), for his argument that the juvenile court failed to consider evidence presented regarding his current conditions or regarding his conduct relating to his ability or willingness to care for the daughters.

“This court’s standard of appellate review of judgments terminating parental rights is well settled. A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong. See, e.g., F.I. v. State Dep’t of Human Res., 975 So.2d 969, 972 (Ala. Civ. App. 2007). Under express direction from our supreme court, in termination-df-parental-rights cases this court is ‘required to apply a presumption of correctness to the trial court’s finding[s]’ when tde trial court bases its decision on conflicting ore ténus evidence. Ex parte State Dep’t of Human Res., 834 So.2d 117, 122 (Ala. 2002) (emphasis added). Additionally, we will reverse a juvenile court’s judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence. F.I., 975 So.2d at 972.”

J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala. Civ. App. 2007)(foot-note omitted).

The record reflects that DHR had first become involved with the then 20-year-old father in 2010, when DHR received reports that M.E.H., who was an infant, had a skin irritation caused by numerous flea bites. Dr. Barry Wood, a psychologist, testified that he had evaluated the father in 2010, and, according to Dr. Wood, the father had slightly lower-than-average intelligence, had suffered from one or more learning disabilities and a personality disorder-, and had abused illegal substances since he was 14 years old.

Amy Olivér, a DHR employee, testified that DHR again became involved with the family in 2013 when neither K.H. nor the daughters were living with the father. Oliver testified that DHR had received reports that K.H. had not properly supervised the daughters and that a neighbor had sexually abused M.E.H, Oliver testified that, in May 2013, the daughters had been removed from KH.’s custody and had begun living with the father, who was also caring for the son. Oliver testified that DHR had provided various services to the father; however, the daughters were removed and placed in the custody of DHR in May 2014 because the son had attempted to start fires in the house,3 the-father had allegedly physically abused the son, the father “moved around a lot” and had léft the daughters in the care of others, the [192]*192father had failed to stay on his “mental-health medication,” and DHR had received reports that the father was using methamphetamine. Furthermore, the .father admitted that, against DHR’s instructions, he had twice taken the daughters to a home where a registered sex offender lived.

Summer Gibson, a DHR employee, testified that, in May 2014, DHR had learned from the father’s mother that the father had suffered from mental-health issues since his childhood.

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J.H. v. Cullman County Department of Human Resources, 224 So. 3d 188, 2016 WL 6648655, 2016 Ala. Civ. App. LEXIS 284 (Ala. Ct. App. 2016).

224 So. 3d 188 (J.H. v. Cullman County Department of Human Resources) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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