H.T. v. G.T., J.T., and Calhoun County Department of Human Resources ( 2023 )

REL: February 3, 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
printed in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
________________________
2210396 and 2210397
________________________
H.T.
v.
A.C. and Calhoun County Department of Human Resources
Appeals from Calhoun Juvenile Court
(JU-20-542.01 and JU-20-543.01)
_________________________
2210398
________________________
H.T.
v.
G.T., J.T., and Calhoun County Department of Human
Resources
Appeal from Calhoun Juvenile Court
(JU-20-546.01)
2210396, 2210397, and 2210398
EDWARDS, Judge.
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-20-
542.01, 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 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.
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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.
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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
1The appeal of the judgment entered in case number JU-20-542.01
was assigned appeal number 2210396; the appeal of the judgment
entered in case number JU-20-543.01 was assigned appeal number
2210397; and the appeal of the judgment entered in case number JU-20-
546.01 was assigned appeal number 2210398. Neither A.M. nor A.B.C.
appealed the judgments.
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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
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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.
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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
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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
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no documentation of any "indicated" or "not indicated" findings relating
to the father. He testified that DHR had required that he submit to color-
code 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 anger-
management 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 the
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trial that he and A.M. had ended their romantic relationship in August
2021 but that they remained friends and were good coparents.
The father further said that he had moved out of the residence he
had shared with A.M. and that he intended to purchase a mobile home.
He denied that A.M. had spent the night at his new residence despite the
fact that her vehicle had been seen parked outside the residence at 1:00
a.m. He explained that he had borrowed her vehicle while his vehicle
was in the repair shop. He also denied that he was living with A.M. when
A.B.C. had moved into A.M.'s residence for approximately one week. He
said, however, that he was aware that A.M. was allowing A.B.C. to move
into A.M.'s residence to help A.B.C. out and that he and A.M. had
discussed the fact that they should require A.B.C. to prove that she was
not using drugs. The father testified that A.B.C. had passed a drug test
requested by a potential employer around the time that she moved into
A.M.'s residence but that A.M. had kicked A.B.C. out when A.B.C.
refused to take another drug test. The father denied that he had told
A.M. to allow A.B.C. to move in or to kick out A.B.C.; he said that he had
simply advised A.M. about the situation.
10
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According to the father, at the time of the trial in November 2021,
he was employed by a company that contracted drivers to work for
Federal Express. At that time, he testified that he worked six days per
week. He explained in December 2021 at the second day of trial that he
had changed to a different contracting company so that his hours would
be more flexible. He said that, at his new job, he typically worked four or
five days per week but said that he might work more during the holiday
season. He testified that his typical hours were from 9:00 a.m. to 3:00
p.m. or 4:00 p.m.
In November 2021, on the first day of the trial, the father testified
that he had not been regularly visiting the son, that "it had been a while"
since he had last visited with the son, and that he had seen the son at
some point during the son's unsupervised visitation with A.M. during a
two-month period in June and July 2021. He indicated that he had
chosen not to visit the son on his own because A.M. was visiting the son
and he was visiting the daughters. He specifically testified that he and
the mother "tag-teamed it" and had decided that "she would work with
[the son] and [he would] work with [the daughters]." He also said that
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he had felt like DHR was more concerned with the intervenors than with
him having visits with the son and that "they" were against him seeing
the son, so he had "wanted to keep everyone happy [and to] wait for his
time in court." On the second day of the trial in December 2021, the
father testified that he had been hampered in visiting the son by his long
work hours. The juvenile court reminded the father that his testimony
in November 2021 had been different and asked the father again why he
had not been visiting the son; the father said that he had chosen not to
see the son because he was working long hours to save up money "to get
the wheels rolling on getting [the] son back" and that he would get off of
work after DHR's offices were closed for the day.
G.T. testified that she is the maternal aunt of A.M. She said that
she and her husband, J.T., had provided care to the son, who suffers from
cerebral palsy caused by his exposure to the disease HSV-1, which had
resulted in his contracting encephalitis. At the time of the trial, the son,
who was born in October 2019, did not speak, had not yet crawled or
walked, could not feed himself, and ate only pureed foods because he was
not able to chew. The son's exposure to HSV-1 was not the fault of the
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parents; in fact, testimony indicated that G.T. had transmitted the virus
to the son when he was a newborn. G.T. testified that she had been
present at the hospital when the son was born and that she had assisted
A.M. after the child's birth by accompanying her to medical appointments
for most of the son's infancy. According to G.T., the father had not
attended the appointments and was not well-versed regarding the care
that the son needed.
G.T. said that the father had not paid any child support and had
not visited the son at her home or at DHR's offices; she indicated,
however, that the father may have visited with the son when A.M. had
unsupervised visitation in June and July 2021. According to G.T., the
father had not attended an individualized-service-plan meeting since
July 2020. She admitted that she and the father did not have a good
relationship and that she had refused to supervise his visitation at her
home. However, she testified that she would have gladly taken the son
to DHR's offices had the father arranged for visitation there. When
questioned about why she did not want to have contact with the father,
she explained that the father had harassed her via text message and had
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even recorded her and the son on video at a gas station when she and the
father happened to run into each other. J.T. testified that, during the
incident at the gas station, the father had belittled G.T. and "was ugly to
her"; J.T. said that he did not want the father to visit at his home because
of the aggression that he had shown during the incident at the gas
station. In addition, G.T. recounted an incident at DHR's offices when
the father had harassed her and J.T. by taunting them and recording
them on video; she said that they had asked the father to stop and had
ultimately left the office to avoid further confrontation. G.T. also
explained that she had never liked the way that the father had treated
A.M. She said that A.M. had admitted to her that the father had been
verbally abusive during their relationship.
The maternal aunt testified that she was A.B.C.'s sister and that
the daughters were her nieces. She testified that she had routinely
supervised the father's visits with the daughters and that they had
interacted well during those visits. When asked about concerns that she
might have about the father, the maternal aunt mentioned that her
concerns stemmed from her knowledge that the father had been abusive
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to A.B.C. in front of the daughters at some point in the past; however, the
maternal aunt said, she had no other concerns about the father's ability
to care for the daughters. Regarding A.B.C., the maternal aunt testified
that A.B.C. had moved in with the father and A.M. for about a week after
A.B.C.'s residence was destroyed in a fire.
The maternal aunt, who works at the same Federal Express facility
as the father, further testified that the father would sometimes approach
her at work but that she would not engage with him if he spoke to her.
She indicated that she had had little interaction with the father but also
indicated that he had been confrontational toward her. She said that
once he had told her, "I think you need to get home to my kids," as she
was leaving work one evening. She also testified that she had learned
that the father had taken photos or a video of the children at a pool to
which the maternal aunt had taken them to go swimming; she said that
the father had not approached her at that time and that she had not
known that he had been there until she later learned of the photos or the
video.
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James Marinos, the DHR caseworker assigned to the family's cases
in August 2021, testified at the August 2021 hearing and at the trial. He
admitted that he had not known A.M. or the father for very long and that
he could not provide testimony relating to whether either had benefited
from the services that DHR had provided to them. He testified that both
A.M. and the father had completed all services that DHR had
implemented and that he had not recommended that they be provided
further services. Marinos also testified that he had no concerns about
the father's alcohol use, that he was not concerned about the father's
protective capacity, and that he had not been informed of any further
incidents of domestic violence or "anger disorder." The only complaint
Marinos had about the father was that his home, which Marinos had
made a scheduled visit to, was "too neat" and "appeared staged."
However, Marinos admitted that the father may have cleaned the home
in preparation for his visit and said that the father's home contained
furniture, clothing, and food.
We first address the father's argument that the children should
have been returned to his custody because, he says, " 'the granting of
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temporary custody to a non-parent, that is in the nature of pendente lite
relief, does not defeat the presumption in favor of the natural parent.' "
N.G. v. L.A., 790 So. 2d 262, 265 (Ala. Civ. App. 2000) (quoting J.F. v.
A.G., 607 So. 2d 234 (Ala. Civ. App. 1991)). The father does not explain
what custody order he contends was "in the nature of pendente lite relief,"
and we do not see any such orders in the record. The November 2020
dependency judgments entered in each case were not pendente lite
orders. See C.L. v. D.H., 916 So. 2d 622, 626 (Ala. Civ. App. 2005)
(explaining that "an adjudication of dependency and an accompanying
custodial placement of a child in a dependency proceeding is an
appealable order," despite the fact that other proceedings may be
contemplated at a later date, provided that the juvenile court has
considered all the evidence concerning the current state of the children
and later proceedings will turn on new evidence). Accordingly, we reject
the father's argument on this point.
The father, relying on Ex parte Mathews, 428 So. 2d 58, 59 (Ala.
1983), next argues that the juvenile court's judgments awarding custody
of the children to nonparents should be reversed because the juvenile
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court did not find the father to be unfit. The father contends that, as a
parent, he had a prima facie right to the custody of the children. See Ex
parte Mathews, 428 So. 2d at 59 ("The prima facie right of a natural
parent to the custody of his or her child, as against the right of custody
in a nonparent, is grounded in the common law concept that this primary
parental right of custody is in the best interest and welfare of the child
as a matter of law."). However, in making this argument, the father
overlooks the fact that the juvenile court had previously determined that
the children were dependent and awarded their custody to DHR in the
November 2020 judgment. Once that occurred, the juvenile court was
not required to determine that the father was unfit in order to award
custody of the children to the intervenors and the maternal aunt.
Instead, the juvenile court, having initially determined the
children's dependency and having determined that the children remained
dependent in 2021, had the authority to make a custodial disposition of
the children under Ala. Code 1975, § 12-15-314(a)(3). We explained in
P.D. v. S.S., 67 So. 3d 128, 131-32 (Ala. Civ. App. 2011), that the parental
presumption "applies in child-custody disputes between a parent and
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nonparent; it does not apply if the child or children, the custody of whom
is disputed, have been found to be dependent." More recently, we stated
that "[i]n the dispositional phase of a dependency proceeding, however,
the father of a child does not have any presumptive right to custody of
his child as against more distant relatives." D.W. v. M.M., 272 So. 3d
1107, 1112 (Ala. Civ. App. 2018). Thus, we must reject the father's
argument that the juvenile court's judgments should be reversed because
they did not determine that he was unfit. However, the father's challenge
regarding the failure to find him unfit is akin to a challenge to the
juvenile court's findings of continued dependency of the children, and we
will therefore consider whether the evidence supports the findings of
dependency of the children.
As Judge Moore explained in his dissent in J.B. v. Cleburne County
Department of Human Resources, 992 So. 2d 34, 49 (Ala. Civ. App. 2008)
(Moore, J., dissenting):
"[W]hen a parent petitions the juvenile court to regain custody
of the child, the juvenile court is confronted with several
separate, but interrelated, questions: (1) whether the child
remains dependent, see J.P. v. S.S., 989 So. 2d 591 (Ala. Civ.
App. 2008), (2) whether reasonable efforts at reunification, if
required, have failed or succeeded, see Ala. Code 1975, § 12-
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15-65(f), and (3) whether it is in the best interests of the child
to be returned to the custody of the parents. See Ala. Code
1975, § 12-15-71(a)."
As is the case when the Department of Human Resources seeks a
change in a child's disposition, when a juvenile court is considering a
motion filed by a parent seeking a return of a child to the parent's
custody, the Department of Human Resources must establish first that
the child remains dependent. See D.D.P. v. D.M.B., 173 So. 3d 1, 3 (Ala.
Civ. App. 2015); see also J.B., 992 So. 2d at 50 (Moore, J., dissenting)
("[W]hen the state has deprived a parent of custody of a child on the basis
of the child's dependency, the burden rests on the state to prove by clear
and convincing evidence that the child remains dependent. Having
proven that circumstances existed at one time that rendered the child
dependent, the state is not relieved of its burden of proving that the child
remains dependent at a later time or under different circumstances.").
To establish continuing dependency, the Department of Human
Resources should present evidence regarding that status. When the
continuing dependency is based on the same or similar circumstances
that caused the original dependency, such evidence may include
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indicating that reasonable efforts have been made to rehabilitate the
parent and to correct the conduct or condition that resulted in the child's
original dependency, unless the Department of Human Resources has
been relieved of making such efforts, and that those efforts have either
failed or have not been successful enough to permit reunification. J.B.,
992 So. 2d at 50 (Moore, J., dissenting) ("[I]n order for a juvenile court to
deprive parents of the custody of a dependent child, the burden would be
on [the Department of Human Resources], as the representative state
agency, to prove by clear and convincing evidence that reasonable efforts
at reunification, if required, have failed or, in an ongoing dependency
case, at the very least, that such efforts had not yet succeeded."). If the
Department of Human Resources cannot establish the continuing
dependency of the child by clear and convincing evidence, the juvenile
court lacks jurisdiction to enter a judgment awarding custody of the child
to anyone but the parent and is required by statute to dismiss the
dependency action. See Ala. Code 1975, § 12-15-310(b) ("If the juvenile
court finds that the allegations in the petition have not been proven by
clear and convincing evidence, the juvenile court shall dismiss the
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petition."); H.C. v. S.L., 251 So. 3d 793, 794 (Ala. Civ. App. 2017) ("If the
child is not dependent at the time of the dispositional judgment, the
juvenile court lacks jurisdiction to make a custody determination.").
The juvenile court's factual findings in a dependency case when the
evidence has been presented ore tenus are presumed correct. T.D.P. v.
D.D.P., 950 So. 2d 311 (Ala. Civ. App. 2006). A finding of dependency
must be supported by clear and convincing evidence. Ala. Code 1975, §
12-15-310(b). When a juvenile court has not made specific factual
findings in support of its judgment, we must presume that the juvenile
court made those findings necessary to support its judgment, provided
that those findings are supported by the evidence. K.C. v. Jefferson Cnty.
Dep't of Hum. Res., 54 So. 3d 407, 413 (Ala. Civ. App. 2010). In addition,
the juvenile court may consider the totality of the circumstances when
making a finding in a dependency proceeding. G.C. v. G.D., 712 So. 2d
1091, 1094 (Ala. Civ. App. 1997); see also T.D. v. S.R., 293 So. 3d 434, 436
(Ala. Civ. App. 2019); R.G. v. Calhoun Cnty. Dep't of Hum. Res., 716 So.
2d 219, 222 (Ala. Civ. App. 1998); and D.P. v. State Dep't of Hum. Res.,
571 So. 2d 1140 (Ala. Civ. App. 1990).
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The term "dependent child" is defined in Ala. Code 1975, § 12-15-
102(a)(8), as follows:
"(8) DEPENDENT CHILD. a. A child who has been
adjudicated dependent by a juvenile court and is in need of
care or supervision and meets any of the following
circumstances:
"1. Whose parent, legal guardian, legal
custodian, or other custodian subjects the child or
any other child in the household to abuse, as
defined in [Ala. Code 1975, §] 12-15-301 or neglect
as defined in [§] 12-15-301, or allows the child to
be so subjected.
"2. Who is without a parent, legal guardian,
or legal custodian willing and able to provide for
the care, support, or education of the child.
"3. Whose parent, legal guardian, legal
custodian, or other custodian neglects or refuses,
when able to do so or when the service is offered
without charge, to provide or allow medical,
surgical, or other care necessary for the health or
well-being of the child.
"4. Whose parent, legal guardian, legal
custodian, or other custodian fails, refuses, or
neglects to send the child to school in accordance
with the terms of the compulsory school
attendance laws of this state.
"5. Whose parent, legal guardian, legal
custodian, or other custodian has abandoned the
child, as defined in [§] 12-15-301[(1)].
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"6. Whose parent, legal guardian, legal
custodian, or other custodian is unable or
unwilling to discharge his or her responsibilities to
and for the child.
"7. Who has been placed for care or adoption
in violation of the law.
"8. Who, for any other cause, is in need of the
care and protection of the state."
Section 12-15-301(1) defines the term "abandonment" as:
"A voluntary and intentional relinquishment of the custody of
a child by a parent, or a withholding from the child, without
good cause or excuse, by the parent, of his or her presence,
care, love, protection, maintenance, or the opportunity for the
display of filial affection, or the failure to claim the rights of a
parent, or failure to perform the duties of a parent."
The evidence relating to the daughters does not rise to the level
necessary to support a conclusion that they continue to be dependent.
Marinos testified that he had not requested that the father participate in
further services upon the father's completion of those services that DHR
had previously offered. Although Marinos testified that he could not say
that the father had benefited from the services that he had completed, he
also failed to testify that the father had not benefited from those services.
The evidence indicated that the father has both gainful employment and
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a safe and clean residence. Although some evidence casts doubt on their
testimony, both the father and A.M. testified that they were no longer
involved in a romantic relationship; notably, no evidence indicated that
DHR had informed either the father or A.M. that they would be required
to separate in order to be reunified with the children. A.M. testified that
the father had changed for the better after completing the services offered
by DHR. Although the record contains some evidence indicating that the
father had been confrontational toward the intervenors and maternal
aunt, Marinos specifically testified that he had not learned of any
incidents of domestic violence or anger during his tenure as caseworker.
The evidence concerning A.B.C.'s brief period of living with either A.M.
or A.M. and the father after her residence was consumed in a fire was, in
our opinion, irrelevant.
With respect to the father's relationship with the daughters, the
maternal aunt testified that the father had visited the daughters
regularly, that they and the father had interacted well during those
visits, and that she had no concerns about the father's ability to care for
the daughters other than concerns about his past behavior with A.B.C.
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Although the maternal aunt testified that the father had been abusive to
A.B.C. in front of the daughters in the past, she did not indicate when the
father and A.B.C. had last resided together. The maternal aunt indicated
both that the father had been confrontational with her and that she had
had little interaction with him; she did not testify, as did the intervenors,
that the father had harassed her or that he had been unpleasant to her,
other than to say that he had spoken to her at work a few times and that
she had not engaged with him. While the father's tendency to confront
his children's caregivers is not an admirable trait, his interactions with
the maternal aunt do not appear to have caused her undue upset or
impacted her ability to supervise his visitation with the daughters such
that those interactions could be considered serious enough upon which to
rest a finding of dependency. Our review of the record convinces us that
the juvenile court lacked clear and convincing evidence indicating that
the conduct or condition of the father at the time of the trial was such
that the daughters remained dependent. The juvenile court's judgments
regarding the daughters in case numbers JU-20-542.01 and JU-20-
26
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543.01 are therefore reversed, and the causes are remanded for the entry
of judgments consistent with this opinion.
Regarding the son, however, the record discloses that the father,
although he may have seen the son on a few occasions in June or July
2021, had failed to establish regular visits or otherwise communicate
with the son for over a year before requesting specific visitation from
DHR in the period between the November 2021 trial date and the
December 2021 trial date. The father had not participated in the son's
care, had not attended any physician or physical-therapy appointments
with the son, and had not, as far as the record reveals, communicated
with the intervenors about the welfare of the son after he was placed in
their home. Thus, the evidence indicates that, after the child's removal
from the custody of the father, "the child [was deprived of] the presence,
care, protection, or filial affection of the father," § 12-15-301(1), and "that
the [father] [failed to] claim[] the rights or perform[] the duties of a
parent," id., suggesting that the father's conduct could be considered
abandonment of the son. See A.E. v. M.C., 100 So. 3d 587, 598 (Ala. Civ.
App. 2012) (explaining that "failing to be present and act as a parent is
27
2210396, 2210397, and 2210398
[an] equally significant" consideration when a juvenile court is
considering whether a parent's conduct amounts to abandonment).
At the postjudgment hearing, the juvenile court addressed its
reasons for its judgment, which included its conclusion that the father
lacked credibility based on its concerns that the father had committed
perjury during either the hearing on the PFA petition or during the trial
before the juvenile court. In addition, the juvenile court explained on the
record:
"What did bother me was his attitude outside of this
courtroom as everyone, including himself, testified to that he
basically didn't go see [the son] because he didn't like what
DHR had set up. And, again, I'm paraphrasing. But that was
the intent. Not providing any support for his children bothers
me tremendously. I will say this I think [the issue regarding
the son] is clear-cut. … He didn't participate. He's admitted
he didn't participate. He has no idea how to handle the special
needs of that child. He didn't care to find out is basically what
he testified to because he didn't like the situation."
In its postjudgment order, the juvenile court specifically found that,
"[w]hether by choice or inability, the father was and is incapable of
providing care for a child with special needs of this type."
Although the juvenile court did not specifically make a finding of
abandonment, based on the evidence, the juvenile court could have been
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clearly convinced that the father's conduct amounted to abandonment of
the son and could therefore have concluded that the son remained
dependent based on Ala. Code 1975, § 12-15-102(8)5., and § 12-15-301(1).
In addition, in light of the juvenile court's comments on the record at the
postjudgment hearing and its statement in the postjudgment order, the
juvenile court was clearly convinced that the father was either "unable
or unwilling to discharge his … responsibilities to and for the [son]," see
§ 12-15-102(8)6., as evidenced by the father's failure to participate in
regular visitation and his failure to learn about the special needs of the
son through attendance at medical appointments, and that therefore the
child was dependent under § 12-15-102(8)6. Furthermore, at the
postjudgment hearing, the juvenile court spoke of the father's disinterest
in participating in reunification efforts because of his dislike of "the
situation," and we have explained that a parent's failure to participate in
services and reunification plans to ameliorate the conditions that gave
rise to the child's initial or continuing dependency may be considered
evidence of continuing dependency. See R.R. v. Chilton Cnty. Dep't of
Hum. Res., [Ms. 2200709, Jan. 7, 2022] ___ So. 3d ___, ___ (Ala. Civ. App.
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2210396, 2210397, and 2210398
2022) (indicating that a parent should "participate in the services offered
[the Department of Human Resources] in an attempt to ameliorate the
conduct or condition that led to [the Department of Human Resources's]
involvement with the family," finding fault with the father, who had not
cooperated with DHR or participated in services, and affirming the
finding of dependency based, in part, on the father's lack of cooperation
in reunification efforts). Because we may presume that the juvenile
court made those findings that are necessary to support its judgment,
provided such findings are supported by clear and convincing evidence
contained in the record, see K.C., 54 So. 3d at 413, and because a juvenile
court may consider the totality of the circumstances when making a
finding of dependency, see G.C., 712 So. 2d at 1094, we conclude that the
dependency finding contained in the judgment entered in JU-20-546.01
regarding the son is amply supported by the evidence.
The father specifically challenges the juvenile court's
determinations that DHR made reasonable efforts to rehabilitate him,
that those efforts had failed, and that "the problems requiring removal
[of the children from the custody of the father] continued to exist." We
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2210396, 2210397, and 2210398
need not address this issue regarding the daughters because of the lack
of evidence of their continuing dependency. Regarding the son, the father
contends that DHR did not make reasonable efforts to rehabilitate him
and that those efforts that DHR did make did not fail. To support his
argument, the father points to evidence indicating that he had benefited
from the services DHR had provided and Marinos's testimony indicating
that he had not recommend any further services be provided to the father.
" '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.
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
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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).
Contrary to the father's assertions in his brief, however, the
juvenile court was not required to return the son to his custody merely
because the father completed the services offered to him. We have
explained that, "[i]n assessing the success of reasonable efforts at
reunification, the juvenile court is not limited to determining solely
whether the parent has complied with the reunification plan or
conditions established by [the Department of Human Resources]."
R.T.B., 19 So. 3d at 205. Although some of the evidence adduced at trial
might have supported the conclusion that the father's participation in
services had alleviated the conduct or conditions that served as a barrier
to reunification, the father's failure to visit with, maintain contact with,
or even check on the welfare of the son could have been considered by the
juvenile court as evidencing that the father had intentionally withheld
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from the son "his … presence, care, love, protection, maintenance, or the
opportunity for the display of filial affection" and had failed "to claim the
rights … or … to perform the duties of a parent." § 12-15-301(1).
Although the juvenile court was considering only the dependency of the
son, Ala. Code 1975, § 12-15-319(a)(1), is instructive here. That Code
section provides that "reasonable efforts to … reunite the child with the
parent[]" are not required when that parents has been found to have
abandoned his or her child. Because, as we have already determined, the
juvenile court could have concluded that the father had abandoned the
son, we are not convinced that the father's completion of services and
Marinos's testimony that additional services were not required
necessitates the conclusions that the father and the son should be
reunified and that the dependency judgment entered in case number JU-
20-546.01 regarding the son should be reversed.
Because we have determined that clear and convincing evidence
supports the juvenile court's dependency finding in the judgment entered
in case number JU-20-546.01 regarding the son, and because we are not
convinced that the father is entitled to reunification merely because he
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had completed services offered by DHR, we affirm that judgment.
However, the record lacks sufficient evidence to support the findings of
dependency in the judgments entered in case numbers JU-20-542.01 and
JU-20-543.01 regarding the daughters. Accordingly, we reverse the
juvenile court's dependency judgments entered in case numbers JU-20-
542.01 and JU-20-543.01, and we remand those causes for proceedings
consistent with this opinion.
2210396 -- REVERSED AND REMANDED.
2210397 -- REVERSED AND REMANDED.
2210398 -- AFFIRMED.
Moore, Hanson, and Fridy, JJ., concur.
Thompson, P.J., concurs in the result, without opinion.
34