N.J. v. Madison County Dhr

980 So.2d 997

N.J. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.

2060297.

Court of Civil Appeals of Alabama.

August 31, 2007.

Shannon Matthew Moore of Moore, Brown & Gentle Attorneys at Law, LLC, Huntsville, for appellant.

Troy King, atty. gen., and Sharon E. Ficquette and Elizabeth L. Hendrix, asst. attys. gen., Department of Human Resources, for appellee.

MOORE, Judge.

N.J. ("the mother") appeals from the Madison Juvenile Court's judgment of December 21, 2006, terminating her parental rights to her four children. We affirm.

Issue

The mother contends that the juvenile court erred in finding that there was no viable alternative to termination of her parental rights. Specifically, the mother argues that the juvenile court erroneously found that the children's maternal grandmother was not a suitable person to assume custody of the children.

Standard of Review

A juvenile court's finding that there is no viable alternative to termination of parental rights must be based on clear and convincing evidence. D.O. v. Calhoun County Dep't of Human Res., 859 So.2d 439, 443 (Ala.Civ.App.2003). "`[C]lear 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.'" Ex parte T.V., 971 So.2d 1, 9 (Ala.2007) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002), citing in turn Ala.Code 1975, § 6-11-20(b)). When reviewing a finding of fact that the law requires to be supported by clear and convincing evidence, this court is required to conduct "a careful search of the record," Moore v. State Dep't of Pensions & Sec., 470 So.2d 1269, 1270 (Ala.Civ.App.1985), comparing the supporting evidence and any countervailing evidence, to assure that the finding is supported by evidence that is sufficiently clear and convincing. See KGS Steel, Inc. v. McInish, [Ms. 2040526, June 30, 2006] ___ So.2d ___ (Ala.Civ.App. 2005). See also Columbus v. State Dep't of Human Res., 523 So.2d 419, 421 (Ala.Civ. App.1987); L.M. v. D.D.F., 840 So.2d at 179 ("Due to the serious nature of the action of terminating a parent's parental rights, this court must carefully review the unique set of facts established in each case in determining whether clear and convincing evidence was presented to support the termination of those rights."); and Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that due process allows parental rights to be terminated only upon clear and convincing evidence).

The Evidence

The evidence relevant to the issue before the court indicates that the Madison County Department of Human Resources ("DHR") assigned several caseworkers to assist in reunifying the children with the mother. In September 2004, while attempting to reunify the family, DHR placed the children with the children's maternal grandmother after a favorable home evaluation of her one-bedroom apartment. A DHR caseworker had interacted with the maternal grandmother numerous times during Individual Service Plan ("ISP") meetings. That DHR caseworker testified that the maternal grandmother always expressed concern and love for her grandchildren and that they appeared comfortable around her. According to the caseworker, the maternal grandmother expressed concern over allegations that the mother had physically abused the children, but she seemed to deny the truth of those accusations even after the mother was convicted of three counts of child abuse. The DHR caseworker testified that she did not have any problem placing the children with the maternal grandmother in September 2004 because, she said, at the time the grandmother appeared to be able to meet the emotional, financial, and other needs of the children despite the fact that she was not working. However, the DHR caseworker was not aware that a prior home evaluation regarding the maternal grandmother had not been favorable.

The DHR caseworker testified that within days of acquiring custody of the children in September 2004, the maternal grandmother became ill and was hospitalized. According to the caseworker, the maternal grandmother telephoned her oldest daughter and asked her to care for the children, but the children ended up being cared for by the mother even though the maternal grandmother understood that the mother was not supposed to have custody of the children. Based on those circumstances the caseworker realized that the maternal grandmother was not an appropriate placement. After a hearing, the juvenile court ordered the children removed from the maternal grandmother's home. DHR thereafter placed the children in foster care and did not take any further action to return the children to the custody of the maternal grandmother.

The maternal grandmother testified that she had taken care of the children for long periods of time before they were removed from the custody of the mother. During that time, she stated, she had never noticed any signs of physical abuse and the children had never complained that the mother abused them. She admitted, however, that after DHR removed the children, she did see marks on their bodies that were clearly visible. The maternal grandmother testified that she would not allow anyone, including the mother, to harm her grandchildren, and that she would have reported the mother to DHR if she had suspected a problem.

The maternal grandmother testified that she had three children, all of whom had been involved with DHR because of child-rearing problems. She had attempted to gain custody of her son's child, but DHR had conducted a home evaluation that was not favorable. That home evaluation occurred before the favorable home evaluation that was conducted in 2004.

The maternal grandmother testified regarding her September 2004 hospitalization. She testified that, after the children were placed with her, she injured her leg and was hospitalized. The maternal grandmother testified that she telephoned her oldest daughter and asked her to care for the children while she was hospitalized. Due to circumstances beyond the maternal grandmother's control, however, the mother got the children. The maternal grandmother testified that she did not intend for the mother to get the children while she was hospitalized and that she understood that the mother was not to have custody of the children. However, the maternal grandmother did not tell the oldest daughter to keep the children from the mother. The maternal grandmother testified that DHR had not given her a number so that she could contact a DHR employee to get the children in the event of an emergency.

At the time of the termination hearing, the maternal grandmother was employed and had been residing for approximately one month in a three-bedroom home. She had been regularly visiting with and giving presents to the children since they had been removed from her home. The maternal grandmother testified that she was willing and able to take custody of the children and to properly care for them. She testified that her leg problem had been resolved and was no longer a barrier to her ability to care for the children. She also testified that her general health was good even though she had recently lost a noticeable amount of weight.

The maternal grandmother testified that she felt the mother had been rehabilitated to a degree and that she trusted the mother. She testified that she would protect the children from the mother and would not intentionally allow the mother to resume custody. However, the maternal grandmother testified that she did not know how she would prevent the children from ending up with the mother in the event of another emergency.

Applicable Law

In Roe v. Conn, 417 F.Supp. 769 (M.D.Ala.1976), the court held that the fundamental right to family integrity protected by the United States Constitution protects a parent from state interference with his or her relationship with his or her child. The court said:

"States, in the exercise of their inherent police powers, may abrogate such rights only to advance a compelling state interest and pursuant to a narrowly-drawn statute restricted to achieve only the legitimate objective. See, e.g., Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). It is not disputed that the State of Alabama has a legitimate interest in the welfare of children. Minor intrusions into the affairs of the family may be permitted when the State has reason to believe that a child's best interest is at stake. In such cases, various options and alternatives are available to the State to achieve its objective of child protection. One possibility might be a requirement that the parents attend seminars and weekly counselling sessions on child care and the responsibilities of parenthood. Another situation might warrant supervision of the parents by a welfare counselor or the placing of a neutral person—such as an aunt—in the home to serve as a bridge between the parents and the child. The State's interest, however, would become `compelling' enough to sever entirely the parent-child relationship only when the child is subjected to real physical or emotional harm and less drastic measures would be unavailing."

417 F.Supp. at 779 (emphasis added). The court concluded that the Constitution required the state to prove that the child would be harmed "in a real and substantial way" if the child was not permanently separated from the parent before the state could terminate the parent's parental rights. Id. The court declared the "neglected child" provision of Alabama's juvenile code to be unconstitutional for allowing termination of parental rights without proof of real harm to the child or proof that other viable alternatives had been considered.

After Conn, this court noted that the legislature had replaced the old "neglected child" statute with a new law...