J.M.S. v. Mobile County Department of Human Resources (Appeal from Mobile Juvenile Court: JU-18-1197.02).

• Court: Court of Civil Appeals of Alabama
• Decided: December 1, 2023
• Docket: CL-2023-0058
• Status: Published

Opinion

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.

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.