Court Case Number: 2150233

Case Number2150233
Case TypeCriminal
StateAlabama, AL
CountyAll Counties
CourtCourt of Civil Appeals of Alabama.
Court Address
Field Date9/2/2016
Close Date


The Montgomery County Department of Human Resources (“DHR”) appeals from the judgment of the Montgomery Juvenile Court (“the juvenile court”) denying its petition to terminate the parental rights of T.S. (“the mother”) and K.A. (“the father”) to D.K.A. (“the child”). The judgment was entered following a trial that included the presentation of live testimony from many witnesses. The record shows that DHR presented evidence that, if found to be credible by the juvenile court, would support a decision that terminating the parental rights of the mother and the father is in the best interest of the child. The juvenile court did not, however, find the evidence presented by DHR to be credible and declined to terminate each parent's parental rights. That decision cannot be reversed on appeal based on the applicable standard of appellate review.
The child was born on December 16, 2008, during the marriage of the mother and the father. DHR became involved with the family when the child was born because of DHR's prior involvement with three of the mother's older children.1 The record indicates that the child was placed with the maternal grandmother after the mother and the father delegated their parental authority to the maternal grandmother, and DHR then terminated its involvement with the family at that time.2 It is not clear from the record how long the child remained with the maternal grandmother before returning to the parents' custody.
In December 2011, following a report of domestic violence between the parents, DHR filed a petition in the juvenile court seeking to have the child removed from the parents' custody. The juvenile court entered an order granting DHR legal custody of the child, and the child was placed in foster care. That order is not contained in the record, and it is not clear whether the juvenile court made a finding of dependency at that time. On November 12, 2013, almost two years after DHR obtained custody of the child, DHR filed a petition to terminate both the mother's and the father's parental rights to the child. On May 2, 2014, DHR amended its petition to assert abandonment by the mother and the father as a ground for termination.
Section 12–15–320(a), Ala.Code 1975, requires “[t]hat the trial on the petition for termination of parental rights shall be completed within 90 days after service of process has been perfected .” The juvenile court did not conduct the trial in compliance with that statute. The juvenile court held hearings on the petition to terminate parental rights on 4 days over a 16–month period: April 16, 2014, August 12, 2015, August 19, 2015, and August 26, 2015. The record shows that DHR filed motions in the juvenile court on November 12, 2014, and March 11, 2015, requesting that the juvenile court resume and complete the trial on the petition. On June 15, 2015, DHR filed a petition for a writ of mandamus seeking to have this court order the juvenile court to resume and complete the trial. This court denied the petition as moot on July 8, 2015, after receiving notice that the juvenile court had scheduled a date to resume the trial. Ex parte Montgomery Cty. Dep't. of Human Res. (No. 2140734, June
Laura Sasser, a DHR child-abuse and neglect investigator, testified that DHR had conducted a child-abuse and neglect investigation in December 2011 that resulted in a finding of “indicated” against the parents for domestic violence. The mother appealed that finding administratively, and the finding was upheld. Sasser testified that, although the domestic-violence incident was alleged to have occurred in October 2011, DHR was not notified by the Montgomery Police Department (“the MPD”) of the incident until November 28, 2011. Sasser testified that the mother told her that the child was present during the domestic-violence incident:
“[DHR's attorney:] And was [the child] ever present when any abuse occurred?
“[Sasser:] Yes, she was present during domestic violence.
“[DHR's attorney:] How do you know that?
“[Sasser:] Per the mother's statement.”
Sasser also testified that she discovered during her investigation that there was little food in the mother's apartment and that the child's clothing was too small.
Latoya Harrell was the DHR social worker assigned to the child's case from 2011 to 2015. Harrell testified that she conducted six comprehensive family assessments on the family from 2011 through 2015 and that she conducted nine individualized service plan (“ISP”) meetings with the family between December 2011 and February 2015. Harrell testified that the mother had three older children who had all been placed with relatives due to the mother's inability to care for those children. Harrell also testified that the mother had a history of depression and mood swings.
Harrell testified that the mother told her that the child had been exposed to domestic violence between the parents:
“[DHR's attorney:] ․ [D]id [the mother] admit to you that [the child] was, in fact, being exposed to domestic violence?
“[Harrell:] Yes.
“[DHR's attorney:] Was it on more than one occasion?
“[Harrell:] Yes.”
Harrell recommended that the mother go to a domestic-violence shelter, but the mother refused. Harrell referred the case for a domestic-violence assessment. That assessment resulted in recommendations for the mother to receive counseling at a facility described as the Sunshine Center and to seek a restraining order against the father, among other things. DHR set the following ISP goals for both parents to achieve for reunification with the child: complete a domestic-violence assessment at the Sunshine Center; maintain contact with DHR; maintain contact with the child through regular visitation; obtain psychological evaluations; complete parenting classes; and achieve and maintain a safe, stable, and permanent living condition. Additionally, the mother was instructed to initiate domestic-abuse counseling and the father was instructed to complete a batterers' intervention program.
The record shows that the mother attended two counseling sessions at the Sunshine Center, but she did not seek a restraining order against the father. The mother and the father obtained the required psychological evaluations, which were conducted by Dr. Curry Hammack. Those evaluations revealed, among other things, that the father's cognitive functioning level was in the mild mental-retardation range and that the mother's level was in the upper mild mental-retardation range.
Harrell testified that the father did not attend the batterers' intervention program as required but that he did attend a two-hour anger-management class at another facility. Harrell testified that the father did not appear to understand the severity of the situation and did not feel that he put the child in danger when he physically abused the mother. Harrell testified that, although he had completed parenting classes, the father was not able to exhibit any understanding of what he had learned in those classes and that he did not seem to have an acceptable understanding of child development, the age-appropriate skills of a child, or how to communicate with and nurture a child.
Harrell testified that the parents initially had one-hour visitation times with the child and that they rotated visitation every other week. Harrell testified that the visitation was discontinued after the mother repeatedly failed to attend visitation and after the father became incarcerated in December 2013. Harrell testified that DHR had provided transportation and bus passes to the parents to enable them to attend visitation. The evidence indicated that DHR referred the parents to a program known as Family Outcome Centered Unification Services (“FOCUS”)3 in June 2013 for a reunification assessment and to an entity named Alliance Continuum of Care (“Alliance”) in November 2013 for in-home reunification services. The record shows that Alliance terminated its services because of the parents' lack of participation. Harrell testified that the mother failed to maintain regular contact with DHR after December 2013. Harrell testified that the mother contacted DHR in October 2014 and asked i
Bernita Bailey, a FOCUS worker, performed an evaluation of the mother and the father over a 14–day period in June 2013 to assess their parental capacities. Bailey testified that she noted the mental deficiencies of the parents and that she tailored her questions and her assessment to the parents' mental abilities. Bailey testified that she worked with the parents regarding proper nutrition, discipline, and parenting. Bailey testified that the parents could not explain or apply the information they had been taught in parenting classes and in one-on-one discussions. Bailey testified that the child could not be reunited with the parents due to the parents' mental deficiencies. Bailey testified that her last contact with the parents was in July 2013 because she had not received another referral from DHR to perform an additional assessment. Bailey believed, however, based on her assessment, that the parents' mental deficiencies would impair their parenting abilities.
Carrie Nelson, the FOCUS supervisor, testified about the assessment conducted by FOCUS. Nelson testified that the parents had severe problems with parenting skills and that they did not understand the concepts of rules and consequences for misbehavior. Nelson testified that FOCUS uses the same tools to perform assessments for everyone and that they do not provide a different assessment tailored to a person's mental ability. Nelson testified that the FOCUS assessment makes recommendations and is not a treatment plan. FOCUS predicted that the parents would be unable to provide care and basic needs for the child, to maintain a stable living environment, to manage their finances, to seek resources, or to assist the child with her education; thus, FOCUS recommended against reunifying the parents and the child.