T.V. v. B.S.

7 So.3d 346

T.V. v. B.S.

2061022.

Court of Civil Appeals of Alabama.

June 6, 2008.

Certiorari Denied October 24, 2008 Alabama Supreme Court 1071294.

T. Mark Maclin of Wilmer & Lee, PA, Athens, for appellant.

Brian C.T. Jones, Athens, for appellee.

PER CURIAM.

On January 13, 2005, the Limestone Juvenile Court terminated the parental rights of T.V. ("the mother") to her then six-year-old son, N.V. ("the child"). The mother appealed to this court, and on October 7, 2005, we affirmed the judgment, without an opinion. T.V. v. B.S. (No. 2040406, October 7, 2005), 975 So.2d 1024 (Ala.Civ.App.2005) (table). The mother petitioned for, and the Alabama Supreme Court granted, certiorari review.

In Ex parte TV, 971 So.2d 1 (Ala.2007), the supreme court reversed the judgment terminating the mother's parental rights, holding that the juvenile court had erred when it "failed to find by clear and convincing evidence that there was no viable alternative to terminating [the mother's] parental rights." 971 So.2d at 2. The court remanded the cause directly to the juvenile court "for a full consideration of viable alternatives to terminating ... [the mother's] parental rights." 971 So.2d at 10. On remand, the juvenile court held a hearing, considered viable alternatives to terminating the mother's rights, and again entered a judgment terminating the mother's parental rights, specifically concluding that there was no viable alternative to the termination. The mother now appeals to this court from that judgment.

The facts underlying the first termination proceeding were stated by our supreme court in Ex parte T.V., 971 So.2d at 2-3:

"[The mother] began using drugs in the 1980s and became addicted to crack cocaine in the 1990s. She continued to use crack cocaine while she was pregnant with [the child], her second child, who was born on June 2, 1999. While she was pregnant with [the child], [the mother] sought assistance from the Department of Human Resources (`DHR') because, as a result of her drug addiction, she was homeless, was without employment or transportation, and was unable to perform her parental duties. She was also facing criminal misdemeanor charges.

"Shortly after [the child's] birth, DHR filed a dependency petition with regard to [the child] because of concerns about [the mother's] homelessness, drug use, and incarceration pending the criminal charges. [The child] was adjudicated dependent, and an agreement was reached among [the mother], DHR, and B.S., an acquaintance of [the mother's], that B.S. would have physical custody of [the child] and that [the mother] would be allowed visitation as agreed between B.S. and [the mother]. There was a one-year period following the adjudication of dependency during which DHR attempted to reunite [the mother] and [the child]. DHR prepared an individual service plan (`ISP') addressing [the mother's] housing and drug problems, but it could not prepare a home study because [the mother] was homeless. [The mother] failed to comply with drug treatment recommended by the ISP; instead, she agreed to the permanent placement of [the child] with B.S. The next year, the trial court with jurisdiction over the dependency petition vested permanent legal and physical custody of [the child] in B.S.. with [the mother's] consent, although the trial court retained jurisdiction to reopen the custody award. The award of permanent custody marked the end of DHR's involvement in the case; at that time [the mother] was still addicted to crack cocaine.

"Both the court's order and the record in the termination-of-parental-rights case establish that [the mother] has now met the goals DHR originally set for her. She is no longer homeless, and she has dealt with her drug problem. She reconciled with and married D.R.V., the father of her first child. Through involvement with their church, [the mother] and D.R.V. have quit using illegal drugs. [The mother] testified that she has been drug-free since July 20, 2002. [The mother] ministers to people with substance-abuse problems. She has maintained employment since July 20, 2002, with short interruptions. She has voluntarily contributed small amounts to [the child's] support; these amounts total $270 since 2004.

"[The mother] testified that she first attempted to reestablish visitation with [the child] in 2002. She asserts that she understood that `B.S. was willing to help her in raising her son during the period of her drug addiction but would be willing to help facilitate the reunification of mother and child should [the mother] overcome her drug addiction.' [The mother's] brief at 8-9. However, according to [the mother], B.S. and her husband, C.S., discouraged the reunification, not returning [the mother's] telephone calls or responding to notes [the mother] left at B.S.'s house. On `numerous occasions,' [the mother] claims, she went to B.S.'s residence to see [the child], but B.S. would leave the residence with him and not allow [the mother] to visit him. C.S. testified, to the contrary, that [the mother] visited [the child] only four to six times from 1999 to 2000, and that, from 2000 until the petition was filed in March 2004, she did not visit at all.

"Believing that B.S. was resisting her efforts to reunite with [the child], [the mother] moved the trial court for visitation rights; the trial court awarded her one hour of supervised visitation each week. In March 2004, B.S. filed in the trial court the current petition to terminate [the mother's] parental rights.

[The mother] moved the court for additional visitation, but it terminated her parental rights before ruling on her motion."

On remand from the supreme court, the juvenile court held a hearing on May 7, 2007. The evidence established that the child had, since he was 5 days old, lived with B.S., C.S., and their two daughters, who were 6 and 10 years old at the time of the remand hearing. The child believes that B.S. and C.S. are his parents and that their daughters are his sisters. He has not been told that T.V. is his biological mother, and he has not asked why his surname is the same as hers. C.S. and B.S. both testified that they believed that it is not in the child's best interest to visit with the mother. C.S. stated that the mother had "shown a constant disregard for the child," and he questioned whether the mother could do anything for the child "other than confuse him even more."

B.S. presented evidence indicating that two years earlier, during the period when the judgment terminating the mother's parental rights was on appeal, the mother had been arrested for driving under the influence of alcohol ("DUI") and had been convicted of the amended charge of reckless endangerment. The mother testified that she had overcome her drug problem, and she insisted that she did not have an alcohol problem. She estimated that she had drunk alcohol in moderation only four to six times during the previous two years. She testified that on the occasion of her arrest for DUI she had attended an outdoor concert where, she said, it was hot and she had "had a few beers with friends." She stated that there were no children in the car with her when she left the concert.

The mother is 45 years old, is a high school graduate, and has had 2 years of college. She testified that she had lived at the same address with her husband and their 18-year-old son for the past 7 years. She and her husband married in January 2003, although, she said, they had been together for 22 years; her husband is the father of her older son. The mother is employed as a quality auditor at Matsu of Alabama, an automotive parts manufacturer, where she works the 11:00 p.m. to 7:00 a.m. shift and earns $12.50 per hour. The mother said that at Cinram, her previous place of employment, which she had recently left for better pay and better benefits, she had been subjected to drug tests numerous times and had tested "negative" each time.

The mother testified that, with one exception, she had not seen the child since December 2004. The exception was in January 2005, when she went to visit her pastor's wife, a teacher at the school the child attends. On that occasion, the mother asked B.S., who was also at the school that day, if she could speak with the child when he came out of the building at the end of the day. B.S. agreed and the mother "fold [the child] hello and asked him if he remembered [her].... [She] asked him how he was doing and that was about it." On cross-examination, the mother acknowledged that she had "held herself out to the school officials as [the child's] mother."

Susan McGrady, a protective-services caseworker for the Limestone County Department of Human Resources ("DHR"), testified that DHR had moved to intervene in the proceeding after the cause was remanded by the Alabama Supreme Court. She stated that DHR stood ready to assist with "finding viable options for the child," but, she said, she had not received any requests for assistance. The parties agreed to continue the hearing to allow for taking the depositions of two expert witnesses—Pam Locke, M.Ed., a licensed professional counselor, and Danny Blanchard, Ph.D., a psychologist. The juvenile court subsequently admitted the depositions in evidence.

Pam Locke testified that DHR had engaged her to supervise visitation between the mother and the child in 2004 and that the mother had paid her to conduct additional, individual sessions with the child. Locke first saw the child in the home of B.S. and C.S. on August 30, 2004, when the child was five years old. She saw the child at his school on two additional occasions in September 2004. The first of the mother's five visits with the child occurred at the DHR office on September 21, 2004. Locke said that before the first visit she had cautioned the mother to move slowly, to be patient, not to reveal her true relationship to the child, and not to pressure the child into premature intimacy. Locke testified that ...