B.N.D. v. Barbour Cnty. Dep't of Human Res.

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B.N.D. v. Barbour County Department of Human Resources

No. 2200998

Alabama Court of Civil Appeals

August 5, 2022

Appeal from Barbour Juvenile Court (JU-20-11.01)

MOORE JUDGE

B.N.D ("the mother") appeals from a judgment entered on August 26, 2021, by the Barbour Juvenile Court ("the juvenile court") finding J.B ("the child"), who was born on January 26, 2015 dependent. We dismiss the mother's appeal in part and affirm the juvenile court's judgment.

Procedural History

On September 9, 2020, the Barbour County Department of Human Resources ("DHR") filed a complaint in the juvenile court, alleging that the child was dependent. DHR asserted that, on September 6, 2020, it had received a report that the child's stepfather, P.D. ("the stepfather") had sexually abused the child and that the child had been removed from the home in which he had lived with the mother and the stepfather and had been placed in DHR's custody. Also on September 9, 2020, DHR filed a motion for a 72-hour hearing. See §12-15-308, Ala. Code 1975. A virtual 72-hour hearing was conducted on September 10, 2020, and a guardian ad litem was appointed to represent the child and to advocate for the child's best interests. On September 30, 2020, the juvenile court entered orders directing that the child would remain in the temporary custody of DHR and that, following an approved home study conducted by DHR, the child would be placed with his paternal grandmother, T.B. ("the paternal grandmother"), and his paternal grandfather, F.B. ("the paternal grandfather").

On January 14, 2021, the mother's attorney filed a notice of appearance as retained counsel for the mother. On April 12, 2021, the mother filed a motion to set a hearing to determine whether the child was dependent; she asserted, among other things, that the juvenile court had failed to advise her of her right to legal counsel at the 72-hour hearing on September 10, 2020. A dependency hearing was conducted on June 1, 2021, and, on June 21, 2021, the juvenile court entered a judgment that included the following findings:

"Upon consideration of the testimony and the review of this matter, it is the opinion and finding of this court that based on clear and convincing evidence, competent and material, and relevant in nature, ... the child is dependent pursuant to § 12-15-102(8), Code of Ala. 1975, and that placement of the child[] in the home and care of [the mother] would be contrary to the welfare of the child, based on the following facts: that the child was sexually abused by [the stepfather] on several occasions; the mother was made aware of the sexual abuse, however she did not take appropriate actions to protect [the child] from further sexual abuse. After being put on notice of her child being sexually abused, the mother left her child with [the stepfather] on or about September 4, 2020, when the child's uncle, [E.S.], was an eyewitness to the child being raped by [the stepfather].

"The court further finds that based on the foregoing, ... [the mother] has poor insight and judgment. Further, she admitted to having knowledge of the sexual abuse and did not take reasonable efforts to protect her child from the perpetrator, she did not report the sexual abuse and did not seek medical attention or psychological counseling for [the child]. Reasonable efforts were made by [DHR] to eliminate the need for removal of the child from his home, based on the testimony from [DHR] and from the witnesses present."

The juvenile court ordered that DHR would continue to exercise temporary custody of the child, that the child would continue to be placed in the care of the paternal grandparents, and that the mother would have supervised visitation with the child. The juvenile court entered an amended judgment on June 30, 2021, that contained the same findings and directed that DHR would continue to provide supervision for the child for 30 days, after which the case would be closed.

The mother filed a motion to alter, amend, or vacate the judgment on July 2, 2021. On July 12, 2021, the juvenile court entered an order granting, in part, the mother's motion, vacating that portion of its amended judgment that addressed the disposition of the child's custody and setting the matter for a dispositional hearing on August 10, 2021. Following the dispositional hearing, the juvenile court entered a final judgment on August 26, 2021, in which it reiterated the findings of fact it had made in its June 30, 2021, amended judgment, including that finding that the child was dependent, awarded sole legal and sole physical custody of the child to the paternal grandparents, and awarded the mother supervised visitation with the child on the second Saturday of each month. On September 9, 2021, the mother filed a motion to alter, amend, or vacate the August 26, 2021, judgment. The mother filed her notice of appeal to this court on September 10, 2021; the appeal was held in abeyance until the entry of the juvenile court's order on September 14, 2021, denying the mother's postjudgment motion. See Rule 4(a)(5), Ala. R. App. P. The mother later filed a motion requesting, among other things, an order directing the court reporter to correct the transcript of the September 10, 2020, 72-hour hearing to the extent that it indicated that the mother had been represented by counsel at that hearing; she also requested that the juvenile court order the court reporter to supplement the transcript of the June 1, 2021, dependency hearing with an updated index. The juvenile court entered an order granting the mother's motion on February 24, 2022.

FACT

The undisputed testimony indicates that, on September 4, 2020 the child was left in the care of the stepfather and the mother's brother, E.S., who was 16 years old at the time of the June 1, 2021, dependency hearing, and that E.S. had witnessed the stepfather raping the child on that date. The stepfather was arrested on that same date, September 4, 2020, and DHR received a report of the incident on September 6, 2020. Stephen Ezell and Jennifer Johnson, who are employees of DHR, testified that the child had disclosed, in a forensic interview conducted after the incident, that he had reported to the mother that the stepfather had touched him inappropriately on multiple occasions before being raped by the stepfather. As a result, the child was removed from the mother's home and was ultimately placed in the care of the paternal grandparents.

The mother denied that the child had made multiple reports of abuse to her before the rape; instead, she said, the child had stated to her on only one occasion that the stepfather had "touched his butt." According to the mother, upon the child's notifying her on that occasion that the stepfather had touched him inappropriately, she had questioned the stepfather, who, she said, had denied the child's allegation but had stated that "his finger could have slipped" when he was drying off the child after a bath. The mother and her father, W.S., testified that the family had decided to closely watch the stepfather after that occasion, that they had not witnessed any signs of abuse, and that the child had not appeared to be scared of the stepfather.

Johnson, the paternal grandmother, and the paternal grandfather each testified that the mother had stated at an individualized-service-plan meeting held by DHR following the incident on September 4, 2020, that the mother had been aware of the stepfather's abuse of the child but that she had not disclosed that abuse because the stepfather had threatened to commit suicide. The mother denied that she had made that statement and testified that she had informed DHR that the stepfather had threatened to shoot her, the child, or himself when she had tried to leave him "numerous" times. She stated that, at the time of the June 1, 2021, dependency hearing, she and the stepfather had been together for six years, that the stepfather has post-traumatic stress disorder, and that he had physically abused her. The mother stated that she had not left the stepfather because she was scared.

According to the mother, she had not reported the child's disclosure regarding the stepfather's abuse because the stepfather had promised he would change and be a better man and she was giving him a second chance. The mother testified that she had not had any contact with the stepfather since his arrest and that she had obtained a divorce from the stepfather. She stated that the child had never told her of any incidents of abuse before he disclosed that the stepfather had touched his butt, that she had believed the child but had questioned the statement because the child did not seem afraid of the stepfather, and that the stepfather had denied the child's accusation and she had believed him when she should not have. She testified that she had been "blinded by love," that she "didn't want to believe" that the stepfather had committed the abuse, and that she regretted not reporting the child's disclosure to the police. She testified further that she had done the best she could with the knowledge she had had at the time.

Johnson testified that the mother had confirmed in a letter to DHR that she had known something inappropriate had occurred between the stepfather and the child leading up to the rape. According to Johnson, the mother had stated that she had believed the child was fabricating the accusations. Johnson testified that DHR had referred the mother to Chovan Counseling. The mother testified that she had attended counseling and that her counselor had advised her to distract the child from discussing the stepfather and had been teaching her to recognize signs of sexual assault.

The mother and the paternal grandparents appeared to agree that...