T.W. v. Calhoun Cnty. Dep't of Human Res.

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T.W. v. Calhoun County Department of Human Resources

Nos. CL-2022-0694, CL-2022-0695

Alabama Court of Civil Appeals

February 10, 2023

Appeals from Calhoun Juvenile Court JU-19-972.02 and JU-19-973.02.

MOORE Judge.

In appeal number CL-2022-0694, T.W. ("the mother") appeals from a judgment entered by the Calhoun Juvenile Court ("the juvenile court") terminating her parental rights to S.H.W., who was born on September 4, 2012. In appeal number CL-2022-0695, the mother appeals from a separate judgment entered by the juvenile court terminating her parental rights to H.T., who was born on February 2 2017. We reverse the juvenile court's judgments.

Procedural History

On August 24, 2021, the Calhoun County Department of Human Resources ("DHR") commenced an action by filing a petition to terminate the parental rights of the mother and of J.T. ("the father") to S.H.W. That same date DHR commenced a separate action by filing a petition to terminate the parental rights of the mother and of the father to H.T. The juvenile court consolidated the actions for the purposes of trial, which commenced on November 19, 2021, and was concluded on April 26, 2022. On April 26, 2022, the juvenile court entered a separate judgment in each action terminating the parental rights of the mother and the father to S.H.W. and J.T. ("the children").^[1] The mother filed a postjudgment motion in each action on May 4, 2022; the juvenile court entered orders denying those motions on May 11, 2022. The mother filed a timely notice of appeal in each action on May 25, 2022. This court consolidated the mother's appeals ex mero motu.

Facts

The facts pertinent to the disposition of these appeals are as follows. The children were residing with the mother and apparently, at times, the father, in a mobile home in Calhoun County until October 2019, when DHR removed the children from the mother's custody. While the children were in her custody, the mother, who was disabled and unemployed, financially provided for the children through benefits received from governmental-assistance programs. S.H.W., who was six years old when she was removed from the mother's custody, had been diagnosed with a "speech impairment" and a learning disability. S.H.W. was receiving speech therapy and attending special-education classes to address her special needs. The mother testified that she was taking online college courses to learn more about how to address S.H.W.'s special needs. H.T., who was three years old when she was removed from the mother's custody, had been diagnosed with various dental problems for which she was regularly receiving treatment, according to the mother.

In September 2019, DHR received a report that substance abuse was occurring in the family's home. At that time, the father tested positive for methamphetamine. DHR entered into a safety plan with the mother, who had received a negative drug-test result, pursuant to which she was allowed to retain custody of the children, provided that the father was not allowed to reside in the home; the mother was also required to supervise the father's visitations with the children. According to the safety plan, the mother showed "great aptitude toward protecting her children as evidenced by her motivation to create a safe environment for her children." The mother was also "fully willing to cooperate" with DHR.

In October 2019, the mother tested positive for methamphetamine. Based on that positive drug-test result, DHR terminated the safety plan, removed the children from the mother's home, and placed the children into foster care, where they have since remained. DHR subsequently completed a child-abuse-and-neglect investigation and determined that the children were at risk of harm from the mother as a result of her positive drug-test result. The mother denied that she had ever used illegal drugs and testified that she could not explain the positive drug-test result.

DHR immediately instituted a plan requiring the mother to submit to a substance-abuse assessment, drug testing, and substance-abuse counseling. The mother cooperated with that plan. The mother testified that she had learned a great deal about substance abuse during her counseling sessions, which she had completed in the summer of 2020. Between November 2019 and August 2021, the mother submitted to numerous drug tests and did not produce a single positive result for methamphetamine use after January 2020. At trial, the mother continued to maintain that she had never used illegal drugs and that she had never had a substance-abuse problem. A DHR social worker testified that she had no concerns that the mother was using illegal drugs.

As the case progressed, DHR shifted its focus from the mother's suspected drug abuse to concerns regarding the mother's home environment. The mother had agreed, as part of a family-reunification plan with DHR, that she would maintain stable, clean, and appropriate housing with working utilities for the children. The mobile home in which the mother was residing at the time the children were removed from her care was described by the children's Court Appointed Special Advocates ("CASA") worker as hazardous, unsanitary, and flea infested. DHR provided the mother with intensive in-home services through programs from ECA FOCUS ("FOCUS") designed to teach her better housekeeping skills. Although the mother testified that she had benefited from those services, the CASA worker testified that she had seen no improvement in the condition of the mobile home throughout 2021 and that any efforts that the mother had made to better her housekeeping skills had proven unsuccessful. The CASA worker and a DHR social worker testified that the mother, who, despite having a learning disability, had obtained an associate's degree in "childcare/preschool" and was, at the time of the last trial date, working toward a bachelor's degree in child psychology, did not seem to understand the severity of the conditions of her residence and did not consistently apply what she had been taught to address those conditions.

In the fall of 2021, the mother moved into a newer and larger mobile home, which the mother described as being clean and in good repair with working utilities. However, a DHR witness who had inspected that mobile home described it as being in the same or even worse condition than the original mobile home, such that DHR could not approve of the children's visiting there. According to DHR's witnesses, it seemed that the mother was permanently incapable of maintaining a safe and sanitary home, and DHR cited that problem as the main factor supporting its petition to terminate the mother's parental rights. The mother disputed that testimony and testified that, by the time of the last day of trial, the second mobile home had been renovated, repaired, and cleaned so that it was safe and suitable for the children.

While working with DHR to improve her housekeeping skills, the mother maintained regular visits with the children. At first, she visited the children for two hours every two weeks under supervision. The mother began having unsupervised visits with the children in December 2020, and, eventually, in 2021, the mother began keeping the children overnight every two weeks. The mother testified that the children were excited to visit with her and enjoyed their visits. During the visits, the mother would give the children food, clothes, and other presents, and, on at least one occasion, money, and the mother would play games with the children to entertain them. A social worker employed by Alabama Baptist Children's Home ("ABCH") testified that the mother appeared to have benefited from the parental counseling that she had received, that the mother had been consistent with her visitations with the children, that she was attentive and had acted appropriately toward the children during visitations, and that the children "absolutely" love the mother and "[y]ou can definitely tell there is an attachment there." The children's CASA worker also testified that the mother had displayed a proper general protective capacity over the children when the CASA worker had observed them visiting at the mother's residence and that the children appeared to be happy and bonded with the mother.

Some evidence, however, indicates that the mother sometimes communicated improperly with S.H.W. during visits, that the mother appeared to have failed to give S.H.W. medication during one overnight visit, and that, on another occasion, had provided the children with food that was past its expiration date. Also, after visits, the children would often smell of cigarettes or other foul odors and would appear unclean and afflicted by flea bites as a result of the condition of the mother's residence.

On June 10, 2021, the mother became involved in a domestic dispute involving a neighbor of the children's aunt. The mother testified that she was visiting the aunt when, she said, the neighbor became verbally abusive and began acting aggressively toward the aunt and the mother. The aunt called the police, which, the mother said, had ended with the neighbor, not the mother, being arrested. The mother testified that she considered herself to have been a victim in that domestic dispute. Nevertheless, DHR ceased allowing the mother to exercise unsupervised visits with the children or to communicate with them over the telephone, and DHR changed its permanency goal^[2] from returning the children to the custody of the mother to adoption over the objection of the mother. All family-reunification services, except for drug testing and in-person visitations, ended at that point. The mother testified that it was her understanding that the June 10, 2021, domestic dispute had...