H.T. v. A.C.

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H.T. v. A.C. and Calhoun County Department of Human Resources

H.T. v. G.T., J.T., and Calhoun County Department of Human Resources

Nos. 2210396, 2210397, 2210398

Alabama Court of Civil Appeals

August 4, 2023

Appeals from Calhoun Juvenile Court (JU-20-542.01 and JU-20-543.01) (JU-20-546.01) EDWARDS, Judge.

This court's opinion issued on February 3, 2023, is withdrawn and the following is substituted therefor.

In July 2020, the Calhoun County Department of Human Resources ("DHR") filed petitions in the Calhoun Juvenile Court ("the juvenile court") seeking to have S.T L.T., and K.T. ("the children") declared dependent those actions were assigned case numbers JU-20542.01, JU-20-543.01, and JU-20-546.01, respectively. S.T. and L.T. ("the daughters") are the daughters of A.B.C. and H.T. ("the father"). K.T. ("the son") is the son of the father and A.M. The juvenile court entered judgments in November 2020 declaring the children to be dependent; those judgments indicated that the determinations of dependency were based on an agreement of the parties. The children were placed in the custody of DHR.

In December 2020, G.T. and J.T. ("the intervenors"), who are the maternal great-aunt and the maternal great-uncle of the son, filed in case number JU-20-546.01 a motion to intervene and a complaint seeking custody of the son. The juvenile court granted the motion to intervene. The intervenors had served as a placement for the son beginning in late July 2020. The father and A.M. answered the intervenors' custody complaint.

In July 2021, the father filed in all three actions what he entitled a "Motion for Placement." In those motions, the father alleged that he had completed all services that DHR had offered to him, that he had stable employment and a stable residence, and that he was ready, willing, and able to serve as the children's parent. The juvenile court denied the father's motions the day after they were filed. On the motion of the guardian ad litem that had been appointed for the children, the juvenile court consolidated all the actions.

In September 2021, the guardian ad litem filed a motion in case numbers JU-20-542.01 and JU-20-543.01 seeking to transfer custody of the daughters to their maternal aunt, A.C. ("the maternal aunt"), who was currently serving as their placement. The father filed a response to the guardian ad litem's motion in both actions and also filed in both actions a motion to restore custody of the daughters to him, alleging again that he had completed all services that DHR had offered to him and was a fit and proper person to have custody of the daughters. The juvenile court set both the motions of the guardian ad litem and the motions of the father for a trial to be held in November 2021.

After the consolidated dispositional trial in all three actions, which was held on November 15, 2021, and December 13, 2021, the juvenile court entered a dispositional judgment in each action on January 10, 2022, finding that the children remained dependent. In the judgments entered in case numbers JU-20-542.01 and JU-20-543.01, the juvenile court awarded custody of the daughters to the maternal aunt. In the judgment entered in case number JU-20-546.01, the juvenile court awarded custody of the son to the intervenors. The father filed postjudgment motions in all three actions, which the trial court denied on February 3, 2022, after having held a hearing.

The father filed a timely notice of appeal in each action.^[1] The notices of appeal filed in case numbers JU-20-542.01 and JU-20-543.01 named the maternal aunt as an appellee. The notices of appeal did not, however, list the maternal aunt as a party upon whom the notices of appeal would be served. In May 2022, the father filed a motion in this court seeking to have the maternal aunt dismissed as an appellee, indicating in that motion that "they [sic] were added in error." This court granted the father's motion and dismissed the maternal aunt as an appellee. However, upon submission of the appeals, this court determined that, because the father was seeking review of the judgments entered in case numbers JU-20-542.01 and JU-20-543.01 on the ground that the juvenile court could not have properly awarded custody of the daughters to the maternal aunt, a nonparent, the maternal aunt must necessarily be an appellee. We ordered that the maternal aunt be restored as an appellee, that she be served with a copy of the notices of appeal, that she be served with the brief filed by the father and DHR, and that she be granted 28 days to either file a brief or to notify this court that she would not be filing a brief. That period expired without the maternal aunt ever filing a brief, and the appeals, which we consolidated ex mero motu, are now ripe for our review.

The record on appeal contains the transcript of an August 2021 permanency hearing relating to the son and to M.W., another child of A.M. who is not related to the father, and the transcript of the trial held in November and December 2021. The testimony relevant to the father and the children reveals that the father had been living with A.M. in early 2020. However, in April 2020, A.M. tested positive for marijuana. A.M.'s testimony indicated that DHR had implemented a safety plan in April 2020, but the record contains only two safety plans, which were implemented in June 2020 and in July 2020, respectively. Pursuant to the June 2020 safety plan, which was implemented after an alleged incident of domestic violence between A.M. and the father that allegedly occurred in June 2020, the son was placed in the home of S.L. According to A.M., in June 2020, she had resided in the same residence with S.L. and the son. A.M. testified that, in July 2020, DHR had learned that A.M. had been caring for the son while unsupervised and that DHR had then terminated the safety plan with S.L. A.M. testified, and the July 2020 safety plan contained in the record indicates, that, following the termination of the June 2020 safety plan, DHR instituted a new safety plan for the son, pursuant to which he was placed with the intervenors.

Neither safety plan contained in the record on appeal concerns the daughters. The father's testimony and the dependency petitions relating to the daughters indicated that they had been residing with the father and A.M. pursuant to a safety plan because their mother, A.B.C., and her boyfriend, W.M., had tested positive for several illegal drugs in or around April 2020. The dependency petitions also mention the alleged incident of domestic violence between A.M. and the father but do not indicate when the daughters were placed with the maternal aunt. During her testimony, the maternal aunt indicated that the daughters had initially been placed with their maternal great-grandmother but that she had moved in December 2020; thus, although it is not clear from the record, it appears that the daughters may have been placed with the maternal aunt in or around December 2020.

The father and A.M. testified about the alleged incident of domestic violence in June 2020. A.M. testified that, although she had, in fact, filed a protection-from-abuse ("PFA") petition and had received an ex parte PFA order, the allegations that she had made in that petition were at least partly untrue. She denied that the father had been physically violent with her at any time, but she admitted that he may have engaged in verbal abuse, including calling her a "worthless piece of shit" and a "dumb bitch." She said that the father had acted in anger during the June 2020 incident and said that they were "past that"; she indicated that the services provided by DHR had been helpful to the father and said that he "was not the same man he used to be." The father also denied having engaged in any physical abuse of A.M. but admitted to calling her the above-described names and saying other hurtful things. The father had successfully had the ex parte PFA order set aside after a hearing at which he denied that the allegations in the PFA petition were true; A.M. had not appeared at that hearing. The June 2020 safety plan indicated that A.M. and the father "cannot control their behavior as evidenced by [the father's] testing positive for alcohol and [A.M.'s] testing positive for THC and alcohol following a domestic violence dispute between them."

According to the father, when DHR first became involved with him and A.M., DHR had "indicated" him for domestic violence and alcohol use. He said that he had appealed that finding and that, after a review, DHR had amended the indicated finding to only "alcohol." The record contains no documentation of any "indicated" or "not indicated" findings relating to the father. He testified that DHR had required that he submit to colorcode drug testing, an anger-management assessment, a domestic-violence assessment, and a parenting assessment. The father said that only the anger-management assessment had indicated that he had required services and that he had completed an online angermanagement course. He also said that he had submitted to random drug tests and that the result of only one test had come back indicated for methamphetamine, which, he said, he had proven was a false positive with a subsequent drug test. The father admitted that he takes the drug Adderall, which is prescribed to him by a physician to treat attention-deficit disorder.

The father testified that he had never used illicit drugs and that he had last drank alcohol around a year and a half before the trial. He also testified that, although he had tested positive for alcohol the day after the alleged domestic-violence incident, he had not been under the influence of alcohol on the day of the alleged incident. He testified at...