R.F.W. v. Cleburne County Department of Human Resources

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REL: 04/01/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2010-2011 2091023 R.F.W. v. Cleburne County Department o f Human Resources Appeal from Cleburne J u v e n i l e Court (JU-09-169.01) MOORE, Judge. R.F.W. ("the f a t h e r " ) Cleburne Juvenile Court ("the appeals from a judgment ("the j u v e n i l e c o u r t " ) c h i l d " ) dependent and awarding custody S.J.P., thechild's maternal of the d e c l a r i n g M.W. ofthe child t o great-grandmother, subject t o 2091023 certain visitation mother"). 2010, In the findings rights that the judgment, juvenile of of court father which set was forth and C.D.W. entered the on ("the July following 14, specific fact: "That c h i l d i s dependent i n t h a t the child's p a r e n t s , g u a r d i a n , or o t h e r c u s t o d i a n are unable to discharge their responsibilities t o and f o r the c h i l d and t h e c h i l d i s i n need o f t h e c a r e and p r o t e c t i o n of the s t a t e . The C o u r t specifically f i n d s t h a t , a l t h o u g h t h e f a t h e r has a t t e m p t e d to comply w i t h a l l the requirements of the Department o f Human R e s o u r c e s , the father continues to be u n a b l e t o p r o v i d e f o r t h e c h i l d ' s c a r e , c u s t o d y and c o n t r o l f o r a n y e x t e n d e d p e r i o d o f t i m e . The C o u r t s p e c i f i c a l l y n o t e s t h a t t h e f a t h e r has a s s i s t a n c e i n c a r i n g f o r h i m s e l f and w o u l d need s u c h a s s i s t a n c e t o continue to adequately care f o r the c h i l d . " The father timely appealed, evidence the does not juvenile court dependency of the As a support matter and a r g u i n g t h a t c l e a r and c o n v i n c i n g the individual i t s ultimate of constitutional c u s t o d y o v e r a c h i l d has continued custody 1270 of the child. ( A l a . C i v . App. determination convincing evidence law, a prima See 1985). parents to the custody of t h e i r and findings of of the who has child. exercised 1269, factual parent facie right In re Moore, The c h i l d may demonstrating 2 a to the So. 2d right of 470 presumptive be o v e r c o m e by that the parents clear are 2091023 currently for unable the c h i l d supervision v. their and t h a t t h e c h i l d through "dependent." V.W. to discharge the responsibilities t o and r e q u i r e s a d d i t i o n a l care and state, i . e . , that the child i s See A l a . Code 1975, § 1 2 - 1 5 - 1 0 2 ( 8 ) a . 6 . ; s e e a l s o G.W., 990 So. 2d 414, 417 ( A l a . C i v . App. 2008) ( q u o t i n g K.B. v . C l e b u r n e C o u n t y D e p ' t o f Human R e s . , 897 S o . 2d 3 7 9 , 389 ( A l a . C i v . App. 2004) the result)) the context be ("'[I]n order (Murdock, J . , c o n c u r r i n g i n t o make a d i s p o s i t i o n o f a c h i l d i n o f a dependency proceeding, t h e c h i l d must i n f a c t dependent a t the time o f t h a t d i s p o s i t i o n . ' " ) . convincing evidence" i s defined " C l e a r and as " ' [ e ] v i d e n c e t h a t , when w e i g h e d a g a i n s t e v i d e n c e i n o p p o s i t i o n , w i l l produce i n the mind o f the t r i e r o f f a c t a f i r m c o n v i c t i o n as t o each e s s e n t i a l element of t h e c l a i m and a high p r o b a b i l i t y as t o t h e c o r r e c t n e s s o f t h e c o n c l u s i o n . Proof by c l e a r and convincing evidence requires a level of proof greater than a preponderance of the evidence or the s u b s t a n t i a l weight of the evidence, but l e s s than beyond a reasonable doubt.'" L.M. v. D.D.F., 840 ( q u o t i n g A l a . Code On appeal following court's So. 1975, § from a an o r e t e n u s factual 2d 1 7 1 , 179 (Ala. C i v . App. 2002) 6-11-20[(b)](4)). judgment finding proceeding, we findings are correct. 3 a child presume J.W. dependent the juvenile v . C.H., 963 S o . 2091023 2 d 1 1 4 , 119 disturbed parte the ( A l a . C i v . App. i f they F l o y d , 550 question finding of evidence; court, are supported So. of the instead, from dependency of as Those f i n d i n g s w i l l by 984 sufficiency this this of that the court child role, weighing was of proven In passing Giving court, we contain unable the conclude sufficient regard that to the evidence the clear a the juvenile that the and c o n v i n c i n g J.B. v. DeKalb ( A l a . C i v . App. of in this demonstrating to discharge h i s parental to reweigh evidence judgment record as r e a s o n a b l y c o u l d have s t a n d a r d i s d e f i n e d above. due on not C o u n t y D e p ' t o f Human R e s . , 12 S o . 3 d 1 0 0 , 112 2008). Ex whether the the by n o t be evidence. evidence does court determines i t s own the sufficient ( A l a . 1989). i n i t sfact-finding determined evidence 2d 982, dependency, acting 2007). the case that juvenile does not the father i s responsibilities t o and f o r child. The father record was working on father shows living a had approximately at the w i t h h i s mother separate been 1 that, house employed year time earning a $8.75 4 the trial, and h i s s t e p f a t h e r , for eventual in of habitation. construction per hour, he job the while The for averaged 2091023 working 40 t o 50 h o u r s money t o provide living expenses. p e r week, day care social Resources she worker with concerns testified that adequate and with had with appropriate, and that room any problems the home The c h i l d that the child house i s minimal interacts well cries t o come D r i v e r t e s t i f i e d t h a t she between the father and she i n d i c a t e d t h a t she d i d n o t p e r c e i v e issues relating The r e c o r d contains and t h e any s a f e t y no e v i d e n c e i n d i c a t i n g t h a t t h e p e r s o n s r e s i d i n g i n t h e home w o u l d anything The but proper juvenile care court nevertheless n o t meet h i s p a r e n t a l basis of the father's on o t h e r s provide f o rthe child. could reliance that Driver meets child, to the child. Driver, visits. at the father's that testified Leslie D e p a r t m e n t o f Human t o those i t i s sanitary. who unsupervised t o the case, t e s t i f i e d him a t t h e end of v i s i t s . not observed County regard the child's the father, home w i t h the Cleburne enough and t o cover h i s f o r over s i x months. ("DHR") who w a s a s s i g n e d h a d no standards, f o r the child The f a t h e r h a d been e x e r c i s i n g v i s i t a t i o n with the child a a n d he was e a r n i n g found obligations failure t o meet f o rassistance 5 with that the to the child DHR's caring goals father on t h e and h i s f o rthe child. 2091023 As to the DHR d i d not i n order had first reason, the e s t a b l i s h any to regain requested e v i d e n c e shows t h a t , i n t h i s requirements custody of the that the father anger-management but child. class, the testified However, D r i v e r that exhibited related interfered with lost custody trial. The regarding the was child, and, as any care of the the father r e n d e r him as father. rights. at anger the who the had The time had c a s e , DHR regarding to properly other the of the " l e t go" d i d not the parent reason given by the the 6 the since dependency of h i s anger identify father child the that and the did while counseling not in the failure of does not child. juvenile court -- the caring for the father completed only the for assistance with t h e e v i d e n c e shows t h a t had intentionally mother had r e u n i t i n g the anger-management f a t h e r ' s r e l i a n c e on o t h e r s child only Given those circumstances, complete unable to the completed s t a t e d a b o v e , D r i v e r t e s t i f i e d t h a t she issues and father a b a r r i e r to safety to class counseling. mother, In t h i s DHR the in jail the mother. In a p r i o r case, father f a t h e r t e s t i f i e d t h a t he problem As to meet anger-management his visitation and former perceive The not father to complete a parenting counseling. parenting f o r the case, 2091023 eighth grade and result, the father depends stuff like him "and responsibility, that the The evidence for told the and on read h i s mother that." contains care that the sort of "a incompetent to p a r e n t the is not, in parent's unfitness." that one indicating own father and mother, with caring the father "cooking, The of Ex p a r t e child. others, itself, needs. father's bathing juvenile d e p e n d e n c e on h i s f a m i l y a p a r e n t ' s r e l i a n c e on support for of h i s l o t " by the for the thing." a checks s p e c i f i c a l l y t e s t i f i e d that helps As write evidence take b e l i e v e d t h a t any abstract, well. than properly mother that to no girlfriend a l l assist his write Other apparently father and undisputed Driver child], cannot record appears that he does not child. her [the the father stepfather, that court rendered However, "in the particularly family, determinative of A.M.B., 4 So. 3d 472, 478 the (Ala. 2008). We may recognize be sufficient parental however, skills that mental l i m i t a t i o n s , to render responsibilities the father to pass the to a and evidently parenting parent unable for a child. displayed c l a s s and 7 when s e v e r e to to In enough, discharge this sufficient adequately case, mental care for 2091023 the No child i n both expert intellectual supervised and other or a testimony indicated limitations from c o n t i n u i n g State Dep't of to provide Human R e s . , 2009) ( a f f i r m i n g a dependent because "no allowed to limitations parental i t s brief to play that with testified pocket had evidence from and to the an that play this had inoperable the with the to child them. developed a p a r t i c u l a r child, court, DHR relies that care at time cigarette liked the f o r the one The C.S.B. child the was those of mother's the mental to fulfill her and whether the to on two father allowed father stated the First, DHR the child The objects of lacks child. lighter. dig pieces that to father out fondness f o r the c i g a r e t t e 8 not mother extent v. App. was regarding the able him change"). i t s position father a whether the being to to p r o p e r l y to prevent (Ala. Civ. reports as father's See evaluated submit setting. the to 432 that has or her as 426, finding is likely support mental c a p a b i l i t y proved 3d mental capacity, condition evidence So. who responsibilities mother's In 26 is prevent that such adequate care. doctor no unsupervised profound about there mother's l i m i t e d so judgment testify evaluations, are an of the his child lighter, 2091023 which did not contain differentiate from workers advised to play with agreement evidence any with of Second, father that lighter; that and with that, that record informed medication overhearing the father child's the a certain as he the mother DHR father had had actually as manner properly Driver prescribed t e s t i f i e d that meet the in had give No the had medical child the the father child him to that took, do. she After had given that he to told by had give failed needs of f a t h e r understands the the in had certain any the the done witness t e s t i f i e d failed he ever t o o m u c h , t h a t he testified that 9 was prescriptions t o do. the no the testified ever or contains accused instructed father child his f a t h e r had exchange, not the lighter. medications the social indicated record the doctor Driver a s k e d him medication to had could allow harmed or the would follow The was with the he remark, should The to the child DHR father visitation that that the child over mother doctors. everything child mother the not trial, the the should shows t h a t the on which lighters. instruction. mother of t a k i n g the argued at he harm from p l a y i n g the and cigarette indicating danger fluid other the the any that child other child. necessity of 2091023 taking the child willingness that to the doctor continue father the to was medication w h e t h e r he The contention that the f a t h e r with with actually the absence of inability We does 2d 601, mental of that evidence reverse on not the not child's answer substantiate challenged At worst, the proper had ever prescribed to properly therefore could a testified the allowing course 602 endangered capabilities abuse parent or a neglect, does that the j u v e n i l e 10 a neglect. of medical 1986) In by re (holding parent, not absent child See does the in prove the an child). the record indicating of he exhibited the medication. ( A l a . C i v . App. any that of the f a t h e r , not abuse or father evidence conclude convincing We the limited also a l s o does n o t amount t o n e g l e c t withholding that she i s so m e n t a l l y the mother that So. expressed a nonworking c i g a r e t t e l i g h t e r evidence 489 Driver f o r the c h i l d . treatment f o r the c h i l d Hickman, had administering although evidence p o o r j u d g m e n t on t h e p a r t Disagreeing of he would. cannot adequately care to play that that. capable foregoing child t o do as p r e s c r i b e d , question and not contain the c h i l d court's clear and i s dependent. judgment, and we 2091023 remand enter the v. t h e cause with a judgment father W.E., Civ. instructions awarding and d i s m i s s i n g temporary 23, 2010] Bryan, J . , Thompson, J., court to of the c h i l d to 1 So. 3d See J . L . (Ala. 2 R E V E R S E D AND REMANDED WITH Thomas, J . , custody t h e dependency p e t i t i o n . [Ms. 2090210 , J u l y App. 2 0 1 0 ) . to the juvenile INSTRUCTIONS. concurs. concurs i n the result, without P.J.,dissents, with writing, writing. which Pittman, joins. B e c a u s e we a r e r e v e r s i n g t h e j u v e n i l e on t h e f o r e g o i n g g r o u n d s , we do n o t a d d r e s s r a i s e d by t h e f a t h e r . 1 c o u r t ' s judgment the other issues Because the c h i l d i s not dependent, the j u v e n i l e court has j u r i s d i c t i o n o n l y t o t r a n s f e r c u s t o d y o f t h e c h i l d t o t h e f a t h e r on a t e m p o r a r y b a s i s f o r t h e p r o t e c t i o n o f t h e c h i l d . See A l a . Code 1 9 7 5 , § 1 2 - 1 5 - 1 3 8 . Any f u r t h e r custodial disposition, including awarding v i s i t a t i o n rights to the m o t h e r , w o u l d have t o be d e t e r m i n e d b y t h e a p p r o p r i a t e c i r c u i t court. S e e R.T. v . B.N.H., [ M s . 2 0 9 0 9 6 8 , J a n . 7, 2 0 1 1 ] So. 3 d ( A l a . C i v . App. 2011). 2 11 2091023 THOMPSON, P r e s i d i n g J u d g e , d i s s e n t i n g . After reviewing the juvenile court's is due t o be the record i n this case, I believe judgment, b a s e d upon o r e tenus affirmed. Our standard of review settled: "'We a r e n o t a l l o w e d t o s u b s t i t u t e o u r judgment f o rt h a t o f t h e t r i a l c o u r t , even when this court might have reached a different result, unless the t r i a l court's resolution o f t h e f a c t s i s p l a i n l y and p a l p a b l y w r o n g . L.R.M. v . D.M., 962 S o . 2 d 864, 873-74 ( A l a . C i v . A p p . 2007) (citing G r i g g s v . G r i g g s , 638 S o . 2 d 9 1 6 , 9 1 8 - 1 9 (Ala. C i v . App. 1 994), quoting i n turn Y o u n g v . Y o u n g , 376 So. 2d 7 3 7 , 739 ( A l a . Civ. App. 1979)). "'[A]n a p p e l l a t e court may n o t s u b s t i t u t e i t s j u d g m e n t f o r t h a t o f the t r i a l court. To do s o w o u l d b e t o reweigh the evidence, which Alabama law d o e s n o t a l l o w . ' " E x p a r t e R.E.C., 899 S o . 2d 2 7 2 , 279 ( A l a . 2004) ( q u o t i n g Ex p a r t e F o l e y , 864 S o . 2 d 1 0 9 4 , 1 0 9 9 ( A l a . 2 0 0 3 ) ) . When addressing the i n a b i l i t y o f an a p p e l l a t e c o u r t t o reweigh t h e evidence and s u b s t i t u t e i t s judgment f o r that of the t r i a l c o u r t , o u r supreme c o u r t r e c o g n i z e d : "'"The trial court must be allowed t o be t h e t r i a l court; otherwise, we (appellate court judges and j u s t i c e s ) r i s k going beyond the f a m i l i a r surroundings of our a p p e l l a t e j u r i s d i c t i o n and i n t o a n a r e a w i t h w h i c h we a r e u n f a m i l i a r a n d f o r w h i c h we a r e ill-suited--factfinding." 12 that evidence, i s well 2091023 " ' E x p a r t e R.T.S. , (Ala. 2000).' 771 So. 2d 4 7 5 , 477 "J.B. v . C l e b u r n e C o u n t y D e p ' t o f Human So. 2 d 3 4 , 3 9 - 4 0 ( A l a . C i v . A p p . 2 0 0 8 ) . " J.L. v . W.E., (Ala. [Ms. 20 9 0 2 1 0 , J u l y 2 3 , 2 0 1 0 ] C i v .App. 2010). receives ore demeanors, tenus "this Furthermore, evidence court and cannot R e s . , 992 So. 3d when , a juvenile observes court the witnesses' reverse the juvenile court's j u d g m e n t u n l e s s i t i s u n s u p p o r t e d by t h e e v i d e n c e so as t o be clearly 120 and p a l p a b l y J.W. v . C.H., 963 S o . 2 d 1 1 4 , ( A l a . C i v . App. 2007). In support evidence the does child case w i t h case, of h i s assertion not support i s dependent, those the child divorce of wrong." judgment child the that no convincing finding compares t h e f a c t s supra. i n t h e mother's In J.L., custody i n this as i n t h i s pursuant t h e T a l l a d e g a County DHR") that to a Department removed t h e The r e m o v a l was b r o u g h t a b o u t b e c a u s e o f deleterious t h e mother and court's ("the T a l l a d e g a C o u n t y f r o m t h e home. mother's the father at the time Human R e s o u r c e s clear the juvenile o f J . L . v . W.E., was that conduct. longer had 13 When custody the father of learned the child, he 2091023 petitioned also f o r custody. sought custody In J.L., domestic The child's of the c h i l d . maternal Id. at grandparents . t h e f a t h e r h a d b e e n i n v o l v e d i n two i n c i d e n t s o f violence, one o f w h i c h h a d o c c u r r e d when he was 18 y e a r s o l d , m o r e t h a n 10 y e a r s b e f o r e t h e e v e n t s made t h e b a s i s of that case. father had As d i r e c t e d completed an anger-management c o u r s e . tested positive but the r e s u l t s by t h e T a l l a d e g a a steady job, lived always exhibited the child. Id. at with a test ordered h i s mother on t h e d a y o f t h e . judgment custody to the maternal This finding court the c h i l d h e l d t h a t t h e r e was no e v i d e n c e or u n w i l l i n g to care d e p e n d e n c y was i m p r o p e r . that the and when v i s i t i n g that dependent was Id. at the juvenile and awarding by Specifically, we i n d i c a t i n g that the father Id. at . with not supported . f o r the c h i l d ; 14 house held f o rthe c h i l d , found grandparents and c o n v i n c i n g e v i d e n c e . The f a t h e r in a appropriate behavior court's of also on o n e o c c a s i o n , n e g a t i v e f o r the use of drugs. had unable the of a l l subsequent drug t e s t s d u r i n g the course T a l l a d e g a C o u n t y DHR h a d f o u n d was s u i t a b l e clear DHR, The f a t h e r f o r the use of marijuana of the l i t i g a t i o n - - i n c l u d i n g hearing--were County thus, was the finding 2091023 Although in this case, t h e two c a s e s Although ways. an many o f t h e f a c t s the father anger-management indicated teach that coping because are distinguishable the father t o those i n important i n J.L. had s u c c e s s f u l l y course, the father's skills i n J.L. are similar the evidence in completed this case c o u n s e l o r , who was a t t e m p t i n g t o to the father, was n o t m a k i n g had ended their sessions progress. The f a t h e r h a d d i f f i c u l t y understanding the guidance workers f o r the Cleburne County Department DHR") had attempted that o f Human Resources to provide to him. h i s mother had t o h e l p him w r i t e that." Evidence inappropriate also indicated to play with a cigarette the c h i l d medicine this also checks that admitted and " s t u f f the father lighter County such like h a d made as a l l o w i n g and f a i l i n g to give p r e s c r i b e d by t h e p e d i a t r i c i a n because t h e d i d not believe case The f a t h e r choices concerning the child, the c h i l d father ("the C l e b u r n e the child had l i m i t e d needed experience i t . The f a t h e r i n i n spending time alone with the child, who was t h r e e o r f o u r y e a r s o l d a t t h e t i m e o f the dependency hearing. J.L. In this the c h i l d case, remain No such the Cleburne evidence County DHR r e c o m m e n d e d with the child's maternal 15 was p r e s e n t e d i n that great-grandmother. 2091023 The juvenile court, father during has the hearing, assistance assistance which had the o p p o r t u n i t y i n caring to continue Admittedly, this court f o r himself i s a close had the o p p o r t u n i t y testified, court t o make t h e d e t e r m i n a t i o n fulfilling evidence progress there toward being i s no also decisions give we fact, unable does n o t s u p p o r t to care 3d position than this that the as p r e v i o u s l y that the to the best standard at , 16 making and a l t h o u g h father would mentioned, father there had made i n t e r e s t s of the of review court's I cannot at the time Although t o be f o rthe c h i l d the conclusion f o r the c h i l d t h e p a r t i e s as appeared to the juvenile So. reached However, t h e to the c h i l d . indicating on t h e o r e t e n u s see J . L . , evidence to care indicating deference such w h e t h e r t h e f a t h e r was c a p a b l e were d e t r i m e n t a l Based that able harm t h e c h i l d , that a n d I may h a v e i n a better the father evidence evidence child. that need f o r the c h i l d . " to observe his responsibilities intentionally was a n d i t was indicated care case, "the father and would than the j u v e n i l e court. they of found that to adequately a different conclusion juvenile explicitly to observe the requiring findings of say that the the father was of the hearing or that 2091023 that the Because juvenile court's I would a f f i r m must r e s p e c t f u l l y Pittman, judgment the judgment dissent. J . , concurs. 17 is clearly of the j u v e n i l e erroneous. court, I

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