A.E. v. Madison County Department of Human Resources ( 2023 )

REL: January 13, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________
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_________________________
A.E.
v.
Madison County Department of Human Resources
Appeal from Madison Juvenile Court
(JU-20-807.01)
EDWARDS, Judge.
In October 2020, the Madison County Department of Human
Resources ("DHR") filed in the Madison Juvenile Court ("the juvenile
court") an action seeking to have A.G. ("the child"), the child of V.G. ("the
father") and A.E. ("the mother"), declared dependent. In January 2021,
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the juvenile court entered a judgment declaring the child dependent and
ordering DHR to provide protective supervision over the child. The
January 2021 judgment did not award legal or physical custody of the
child to DHR or to any third party but instead granted DHR the
discretion to determine the child's physical placement. In addition, the
January 2021 judgment approved as concurrent permanency plans
"return to parent" and "permanent relative placement."
In February 2021, after a permanency hearing, the juvenile court
entered a permanency order again declaring the child dependent,
"vesting" protective custody of the child with DHR, and permitting DHR
to begin transitioning the child to placement in the home of the mother.
The February 2021 permanency order did not award legal or physical
custody of the child to DHR or to any third party. The February 2021
permanency order again approved the concurrent permanency plans of
"return to parent" and "permanent relative placement."
In July 2021, the juvenile court entered a permanency order
concluding that the child remained dependent and maintaining
protective supervision over the child by DHR; again, the July 2021
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permanency order failed to award legal or physical custody to DHR or to
a third party. The July 2021 permanency order required DHR to provide
reunification services to the father and to the mother. Like the
permanency orders that preceded it, the July 2021 permanency order
approved the concurrent permanency plans of "return to parent" and
"permanent relative placement."
In October 2021, the juvenile court entered another permanency
order declaring that the child remained dependent, ordering DHR to
continue providing protective supervision of the child, and placing the
child in the "physical care" of the paternal grandmother, C.P. ("the
paternal grandmother"). The juvenile court again approved the
concurrent permanency plans of "return to parent" and "permanent
relative placement." The October 2021 permanency order also required
DHR to continue to provide reunification services to the mother and to
the father.
On February 4, 2022, the juvenile court entered a permanency
order finding that the child remained dependent, ordering DHR to
continue providing protective supervision, and ordering that the child
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remain in the physical custody of the paternal grandmother. The
February 4, 2022, permanency order adopted as the sole permanency
plan "permanent relative placement." The February 4, 2022,
permanency order did not address reunification services.
After a trial on February 15, 222, the juvenile court entered a
judgment on March 14, 2022, awarding permanent custody of the child
to the paternal grandmother and to the paternal grandfather, R.G. ("the
paternal grandfather"). In the March 14, 2022, judgment, the juvenile
court awarded the mother visitation "as arranged by the [paternal
grandmother and the paternal grandfather] and supervised by [A.S., ('the
maternal grandmother')] or other adult as agreed." The visitation
provision of the March 14, 2022, judgment continues:
"The mother shall be entitled to exercise not less than two (2)
hours of visitation each calendar month with the child and
may exercise additional visitation as agreed upon by the
parties. In the event the parties are unable to agree upon a
schedule of visitation or supervision of visitation, the mother
shall exercise her visitation under the supervision of the Both
Parents Program of the Family Service Center or similar
professional service, at the mother's expense. If the parties
cannot agree on a time, visitation will be on the first Saturday
of the month from 1:00 until 3:00 p.m."
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The March 14, 2022, judgment also awarded the father certain visitation
rights. The mother filed a timely notice of appeal of the judgment; the
father did not appeal.
The testimony taken at the February 15, 2022, trial encompasses
only 79 pages. Nesha Green, the DHR caseworker assigned to the family
in August 2021, testified that the child had been placed in the home of
the paternal grandmother and the paternal grandfather for the entire
time that she had served as the caseworker. Green indicated that the
mother had completed a substance-abuse assessment, a psychological
evaluation, and a program she referred to as "healthy families."
In addition, Green testified that the mother had engaged in
supervised visits with the child and that the mother had also participated
in color-code drug screening. Green testified that the mother's visitation
with the child had "fluctuated up and down" and said that the mother
had reportedly not been "as in tune with the child as she should have
been." According to Green, the mother had, at times, tested positive on
her drug screens, most recently on February 10, 2022, for marijuana.
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Green said that the mother had failed to take a drug screen on February
14, 2022, the day before the trial. 1
Green further explained that the mother had been diagnosed in a
January 2022 psychological evaluation as suffering from severe clinical
depression, severe anxiety, posttraumatic stress disorder, and panic
disorder. Although Green admitted that DHR had originally intended
that the mother submit to a mental-health assessment at Wellstone, a
mental-health-services provider, Green said that the mother had been
unable to submit to that assessment because of an outstanding bill for
previous services at Wellstone. Green further admitted that she had not
scheduled a psychological evaluation for the mother until January 2022
and that she had not yet provided the mother with contact telephone
numbers for the mother to use to schedule a medication assessment.
When asked why the psychological evaluation and provision of contact
information for a medication assessment had been delayed, Green
1Thetestimony at trial indicated that some confusion had arisen
concerning the "color" upon which the mother was to submit to color-code
drug screenings, which may have contributed to her missing the
February 14, 2022, drug screen.
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indicated that she had no answer for those delays. Green also testified
that she had recently set up new parenting classes for the mother.
Green testified that the mother had secured stable housing, but she
said that she did not know where the mother was living other than "with
friends." Green also said that the mother had recently secured
employment at a day-care facility. Green offered no testimony
concerning the mother's earnings, but the mother was appointed counsel
by the juvenile court, indicating that she is indigent.
The mother testified that the child had been removed from her
custody in September 2020 when the mother was 17 years old.2 She
admitted that the child was placed into the physical custody of the
paternal grandmother pursuant to a safety plan in September 2020
because the mother was a minor and had tested positive for marijuana at
the time of the child's birth. The mother testified that she had completed
a program called "Healthy Families" and that she had been informed that
she did not need substance-abuse services by "Bradford." She said that
2According to the mother, she turned 18 years only 6 days after the
child's birth.
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she would follow all recommendations relating to her mental health. The
mother further admitted that she had "slipped a little bit with services"
but she said that she had done so because she was frustrated and "[felt]
like I'm doing all of this and I'm not getting anything out of it." She also
stated that she felt like the paternal grandmother "just want [sic] my
baby anyway" and believes that the paternal grandmother and paternal
grandfather would "kick her out of [the child's] life."
According to the mother, she had become employed at a day-care
facility about one month before the trial. Although the mother did not
indicate what she earned from her employment, she testified that she
was saving money to secure a residence of her own. She said that, as of
the time of trial, she was often living with friends and sometimes living
with the maternal grandmother, which indicates that she did not have a
stable residence. The mother testified that she had reliable
transportation.
The mother explained that the child had been returned to her
custody, albeit with DHR supervision, in February 2021. She said that
she and the child had initially resided with her great-grandmother, C.E.
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("the maternal great-grandmother"). However, the mother said, "they"
had made her leave the maternal great-grandmother's house because of
some conflict with a sibling, after which, she said, she and the child had
begun residing with the maternal grandmother. The mother indicated
that she and the maternal grandmother suffered from occasional conflict
because, the mother admitted, the mother did not like not getting her
own way. The mother complained that she had not received enough help
with the child when living at the maternal grandmother's home,
indicated that she had been "overwhelmed," and said that she had sought
help from DHR, which resulted in the child's being placed back in the
home of the paternal grandmother in August 2021.
The mother stated:
"I didn't have any help or anything. And then one day I tried
to take a shower, and [the child], she was right there. I didn't
have anybody to watch her. She gets out of everything. She
act [sic] like she just got to be right up under me. So it was
hard to do anything. So when I took a shower, she Nair'd her
hair and everybody kept saying it was my fault. I couldn't
take it anymore."
The mother said that she and the father had ended their
relationship in August 2021. She said that she did not feel comfortable
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around the paternal grandmother any longer and said that she felt like
the paternal grandmother had allowed the father and his new girlfriend
to visit with the child more than her. The mother indicated that she
would like the maternal grandmother or S.S., who is her stepfather, to
supervise visits. The mother admitted that she was not ready to assume
custody of the child but said that she desired additional time to complete
services so that she could become a capable parent.
Rochelle Jones, an employee of DHR, testified that she had
performed a home study on the home of the paternal grandmother and
paternal grandfather. She said that the environment was safe but that
the paternal grandfather had a criminal history from the period between
1986 and 1996 and had served one year in prison. According to Jones,
DHR could not approve the home study because of the paternal
grandfather's criminal history but did not oppose a transfer of the child's
custody to the paternal grandmother and paternal grandfather. Jones
testified that the child was doing well in that placement.
Amanda Gentle, the child's guardian ad litem, testified that, in her
opinion, the child's custody should be transferred to the paternal
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grandmother and paternal grandfather. She explained that DHR had
offered the mother several services and that the mother had attempted
but not completed those services. Gentle characterized the mother's
attempts at complying with services as "sporadic." As an example, Gentle
testified that, in November 2021, the mother had been permitted three
opportunities to visit with the child at locations outside of the paternal
grandmother's home but that the mother only fully exercised that
opportunity once; Gentle said that the mother canceled the first of such
visits and cut the third visit short without explanation.
Gentle testified that she had had concerns about the safety of the
child during the period between February 2021 and August 2021 when
the child had lived in the mother's custody. Gentle testified that, when
the mother and the child were living with the maternal great-
grandmother, concerns arose about safety after an incident involving a
sibling of the mother's shooting a gun at the father's car. Gentle said
that, when the mother and the child had been living with the maternal
grandmother and Gentle had visited that home, she had observed that
the child was being allowed to climb steps unsupervised and that another
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child in the home was playing in a bathtub of water without supervision.
Gentle also testified that the mother had told her that she did not realize
how hard it was to care for a baby. Gentle opined that the mother was
not in a condition to provide stability for the child. According to Gentle,
she would not be comfortable allowing the mother to have visitation with
the child in the maternal grandmother's home but would be amenable to
allowing the maternal grandmother to supervise the mother's visitation
in a public place.
On appeal, the mother first challenges the juvenile court's award of
custody to the paternal grandmother and paternal grandfather. Her
argument, however, rests solely on her contention that DHR failed to
make reasonable efforts to rehabilitate her.
" 'Reasonable efforts' include 'efforts ... to make it
possible for a child to return safely to the child's home,'
[former] Ala. Code 1975, § 12-15-65(m) [now codified at Ala.
Code 1975, § 12-15-301(13)], such as efforts to rehabilitate the
parent so that the parent can 'again exercise familial rights
and responsibilities toward the child in question.' Miller v.
Alabama Dep't of Pensions & Sec., 374 So. 2d 1370, 1374 (Ala.
Civ. App. 1979); see also D.M.P. v. State Dep't of Human
Res., 871 So. 2d 77, 89 n.10 (Ala. Civ. App. 2003) (plurality
opinion). Whether efforts at reunification have been
reasonable and whether those efforts have failed or succeeded
are questions of fact for the juvenile court to determine. T.B.
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v. Cullman County Dep't of Human Res., 6 So. 3d 1195, 1199
(Ala. Civ. App. 2008).
" 'In making that determination, the juvenile court
must first identify the parental conduct,
circumstances, or condition that led to the removal
of the children and prevented their return to the
custody of the parent.... The juvenile court must
then consider the efforts expended by the parent
in overcoming those problems and the progress the
parent has made in eliminating or reducing those
problems, so that they no longer constitute a
barrier to reunification.'
"T.B., 6 So. 3d at 1199."
R.T.B. v. Calhoun Cnty. Dep't of Hum. Res., 19 So. 3d 198, 204 (Ala. Civ.
App. 2009).
The child was initially removed from the custody of the mother in
September 2020 based on the mother's testing positive for marijuana at
the time of the child's birth. Although DHR placed the child with the
mother in February 2021 in an attempt to reunite them, the mother
returned the child to DHR after having difficulty managing to care for
the child. The mother admitted that she had not fully participated in
services offered to her by DHR, and her admissions show she had no
stable residence at which to rear the child at the time of the trial. The
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mother stated that she would comply with services aimed at assisting her
with her mental-health issues, which had only recently been identified in
early 2022, but those services had not yet been offered to the mother, in
part because of an outstanding bill at one of the mental-health-service
providers utilized by DHR.
"This court has repeatedly recognized that sustained
efforts at rehabilitation of the parent must be balanced
against the child's need for permanency and stability. See,
e.g., T.B., 6 So. 3d at 1202; J.W.M. v. Cleburne County Dep't
of Human Res., 980 So. 2d 432, 440 (Ala. Civ. App.
2007); Talladega County Dep't of Human Res. v. M.E.P., 975
So. 2d 370, 374 (Ala. Civ. App. 2007); and D.G. v. State Dep't
of Human Res., 569 So. 2d 400, 403 (Ala. Civ. App. 1990). At
some point the child's need for permanency and stability
overcomes the parent's right to continued
rehabilitation. M.W. v. Houston County Dep't of Human
Res., 773 So. 2d 484, 487 (Ala. Civ. App. 2000)."
R.T.B., 19 So. 3d at 206. As of the time of the February 2022 trial, the
child, who was 17 months old, had resided with the paternal
grandmother for approximately 11 months. DHR's attempt to reunite
the mother with the child had failed because the mother, who was barely
an adult herself, was overwhelmed by the demands of caring for the child.
We have explained that DHR is required to assert only " 'reasonable
efforts' to reunite the family," and we have considered the fact that DHR
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has spent considerable time attempting reunification as proof that DHR's
efforts were reasonable and that continued efforts were not necessary.
See id. (explaining that a 34-month period of attempted rehabilitation
was reasonable, especially in light of the fact that, in situations involving
foster-care placement of a dependent child, a 12-month period for
rehabilitation is considered sufficient in most situations). Based on our
review of the record, the evidence indicates that, despite DHR's previous
efforts and a period of nearly 18 months, the mother was not
rehabilitated sufficiently to assume custody of the child.
"Upon a finding that reasonable efforts at family reunification have
failed, a juvenile court may make any disposition that serves the best
interests of the child …." R.T.B., 19 So. 3d at 206. The evidence
presented at trial indicates that the paternal grandmother and paternal
grandfather can provide a stable and loving home for the child, and we
cannot agree that DHR should have delayed securing the child's
permanency to offer the mother further services. Accordingly, we affirm
the judgment of the juvenile court insofar as it awards custody of the
child to the paternal grandmother and paternal grandfather.
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The mother also challenges the award of visitation. She complains
that the visitation award is overly restrictive and violates her right to
visitation, which, as she correctly notes, she maintains. Ala. Code 1975,
§ 12-15-102(23) (defining the residual rights maintained by the parent of
a child's whose custody has been transferred by a juvenile court); R.B.O.
v. Jefferson Cnty. Dep't of Hum. Res., 70 So. 3d 1286, 1291 (Ala. Civ. App.
2011) (plurality opinion) (applying former Ala. Code 1975, § 12-15-1(24),
and stating that "[a] parent who has lost custody of a child through
dependency proceedings retains the residual right to visitation with the
child"). The visitation awarded by the juvenile court in the present case
provides the paternal grandmother and the paternal grandfather almost
total control over when and where the mother may visit with the child.
The juvenile court included a provision requiring that, if the parties could
not agree on the details of visitation, the mother could visit at a visitation
center for two hours on the first Saturday of each month, at her own
expense. The mother contends that, practically speaking, the award of
visitation in the present case is illusory. See J.C. v. Houston Cnty. Dep't
of Hum. Res., 313 So. 3d 1137, 1142 (Ala. Civ. App. 2020) (explaining that
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a visitation award that "gives the custodian the unfettered right to
arrange, or to decline to arrange, visitation between the mother and the
child at her sole discretion … provides only an illusory right
to visitation in the mother"). Under the circumstances of the present
case, we agree.
"[T]he standard governing visitation in dependency cases is the
same as the standard governing visitation in divorce cases." M.C. v.
Jefferson Cnty. Dep't of Hum. Res., 198 So. 3d 518, 522 (Ala. Civ. App.
2015). As we explained in K.D. v. Jefferson County Department of
Human Resources, 88 So. 3d 893, 897-98 (Ala. Civ. App. 2012) (quoting
R.B.O., 70 So. 3d at 1288-89 (footnotes omitted)):
" 'In dependency cases, a juvenile court possesses
discretion over visitation, pursuant to former § 12-15-71(a)(4),
Ala. Code 1975[, now codified at Ala. Code 1975, § 12-15-
314(a)(4).] That Code section provided that the juvenile court
shall exercise its discretion according to the "welfare and best
interests of the child." Notably, that standard is identical to
the standard used for determining the visitation rights of
noncustodial parents in divorce cases. See Carr v.
Broyles, 652 So. 2d 299, 303 (Ala. Civ. App. 1994) ("[T]he
primary consideration in establishing the visitation rights
accorded a noncustodial parent is always the best interests
and welfare of the child."). In Carr, this court held that, under
the best-interests standard, in order "to limit a parent's
visitation based on misconduct, the limitation ordered must
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be supported by evidence that the misconduct of the parent is
detrimental to the child." 652 So. 2d at 304 (citing Jones v.
Haraway, 537 So. 2d 946, 947 (Ala. Civ. App. 1988)); see
also Ex parte Thompson, 51 So. 3d 265, 272 (Ala. 2010) ("A
trial court in establishing visitation privileges for a
noncustodial parent must consider the best interests and
welfare of the minor child and, where appropriate, as in this
case, set conditions on visitation that protect the child.").' "
Unlike the mother in K.D. and the father in R.B.O., the mother in the
present case does not challenge the requirement that her visitation be
supervised. However, we find the principles discussed in K.D. and R.B.O.
to be as apt in the mother's situation as they were to the situations of the
respective parents in K.D. and R.B.O.
We have repeatedly reversed visitation awards that permit a
custodian almost unfettered discretion to control visitation with a parent.
See, e.g., D.B. v. Madison Cnty. Dep't of Hum. Res., 937 So. 2d 535, 541
(Ala. Civ. App. 2006); K.B. v. Cleburne Cnty. Dep't of Hum. Res., 897 So.
2d 379 (Ala. Civ. App. 2004); and K.L.U. v. M.C., 809 So. 2d 837 (Ala. Civ.
App. 2001). By and large, the visitation provision crafted by the juvenile
court in the present case permits the paternal grandmother and the
paternal grandfather to forestall visitation by the mother at their total
discretion. See D.B., 937 So. 2d at 541 (reversing a judgment awarding
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visitation that had made "[the mother's] visi tation with the child 'subject
to any conditions and limitations determined to be necessary and
appropriate by [the child's custodian]' "). The juvenile court attempted to
ameliorate the improper visitation provision by providing that the
mother must have two hours of visitation a month, which, if the parties
cannot otherwise agree on the details of visitation, may be held at a
visitation center at the mother's expense.
However, we fail to find that aspect of the provision sufficient to
save it from reversal. We have explained that " '[a] juvenile court exceeds
its discretion … when it imposes an overbroad restrict ion on visitation
that does more than is necessary to protect the child and thereby unduly
infringes on the parent-child relationship.' " K.D., 88 So. 3d at 897-98(quoting R.B.O., 70 So. 3d at 1291). As the mother contends, nothing in
the record indicates that the juvenile court had a basis for providing the
mother with such a limited amount of guaranteed visitation. See P.D. v.
S.S., 67 So. 3d 128, 136 (Ala. Civ. App. 2011) (reversing a judgment
providing for supervised visitation based on "the lack of evidence
indicating that the mother had ever abused the children or had placed
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the children in harm's way"). DHR returned the child to the care of the
mother in February 2021, indicating that, at least at that time, nothing
in the mother's conduct or condition placed the child in such danger that
contact between the child and the mother should be limited in duration.
At the February 2021 trial, DHR presented no evidence that the mother
posed a particular danger to the child such that her visitation should be
limited to a mere two hours per month.
Furthermore, the requirement that the mother, who is an indigent
19-year-old, pay for visitation at a visitation center in order to secure the
minimal amount of visitation that she has been afforded creates a
situation that is untenable. Because the paternal grandmother and the
paternal grandfather wield control over almost all aspects of the mother's
visitation, to be assured of any contact with the child, the mother must
arrange visitation at a visitation center on the first Saturday of each
month and pay for that visitation. If the mother does not arrange such
visitation or cannot afford to pay for such visitation (the cost of which
does not appear in the record), the paternal grandmother and the
paternal grandfather could easily prevent visitation with the mother by
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not agreeing to the times or alternate places that the mother may suggest
for visitation.
Accordingly, we reverse the judgment of the juvenile court insofar
as it awarded the mother only two hours per month in guaranteed
visitation, required that the mother assume the costs of visitation at a
visitation center, and permitted the paternal grandmother and the
paternal grandfather nearly unfettered discretion over the time and
place of the mother's visitation, and we remand the cause for entry of a
judgment consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.
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