L. H. v. Lee County Department of Human Resources

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rel: 12/30/2009 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, 2009 - 2010 2080818 L.H. v. Lee County Department o f Human Resources Appeal from Lee J u v e n i l e Court (JU-98-100.02, JU-09-244.01, JU-09-245.01, and JU-09-246.01) PITTMAN, L.H. Judge. ("the mother") a p p e a l s Juvenile Court ("the j u v e n i l e children dependent, divested from court") a judgment o f t h e that her of the legal Lee adjudicated her custody of the 2080818 c h i l d r e n , and t r a n s f e r r e d c u s t o d y of Human R e s o u r c e s The record children with ("DHR"). reflects R.H. We that t o t h e Lee County Department affirm. t h e mother ("the f a t h e r " ) . had four The four of her s i x children were l i v i n g w i t h t h e m o t h e r when DHR b e g a n i t s i n v e s t i g a t i o n o f t h e family upon uncle") had molested a c o u s i n the uncle finding was that the mother's mother and t h e c h i l d r e n . living i n other of those paramour brother, children. a n d was The m o t h e r ' s o t h e r 8, a n d 1 1 y e a r s case. conducting At the time, and were n o t girls interviews with with among o t h e r by t o each of the four and t h a t t h e mother The c h i l d r e n w e r e supervision o f DHR pending held i n May 2009. At was placed an several intermediate procedural was children t h i n g s , t h a t one o f them h a d b e e n the uncle children. regard years. three dependency alleging, s e x u a l l y abused to protect i n f o s t e r care adjudicatory the under the hearing. After s t e p s , an a d j u d i c a t o r y hearing that 2 unable a g e d 5, the o l d e s t o f t h e c h i l d r e n , i n M a r c h 2 0 0 9 t h e DHR f i l e d petitions with the a n d one b o y , a g e d 3 extensive ("the two c h i l d r e n were The c h i l d r e n w e r e t h r e e as o f t h e t r i a l , C.H. living households at the time of t r i a l , made p a r t o f t h i s After the father's hearing, the father, the 2080818 mother, a specialist foster-care worker, children's had ad recited litem ("GAL") stating to be dependent interests The failed girl to present were determined meets subsections first -- had been clear l a w as A of to protect children i n the remain i n f o s t e r on appeal convincing a child several i t was "dependent" i n t h e judgment any that they and sexually each of the four contention dependent. Alabama who circumstances DHR that the i s defined i n " i s i n need o f an A l a b a m a care. i s that evidence child best of care or j u v e n i l e c o u r t and listed in several o f t h e p e r t i n e n t s t a t u t e , A l a . Code 1 9 7 5 , § 1 2 - 1 5 - 102(8)(a). Subsection circumstances custodian adjudicated of the c h i l d r e n that supervision" who and mother's children current The c o u r t that the i f n o t a b a n d o n e d ; t h a t one o f t h e the eight-year-old child. her At t h e end o f t h e h e a r i n g , t h e abused by t h e u n c l e ; and t h a t t h e mother had f a i l e d that a and t h e presented i t s f i n d i n g s of fact, c h i l d r e n had been n e g l e c t e d , -- the c h i l d r e n , caseworker t e s t i f i e d , to the court. court children interviewed a n d a DHR guardian recommendations juvenile who exists subjects (1) when the a provides child's child or 3 any that "parent other one ... child of those or other i n the 2080818 household t o abuse, as d e f i n e d i n subdivision (2) o f S e c t i o n 12-15-301 or neglect as d e f i n e d i n s u b d i v i s i o n (4) o f S e c t i o n 12-15-301, the child t o be so s u b j e c t e d . " or allows 12-15-301(2) defines "abuse" harm t o t h e e m o t i o n a l occur through The so as t o i n c l u d e ... h e a l t h effective Juvenile Justice Act of initiated b y t h e DHR i n M a r c h Remaining principles. discussed i n place First, January 2008. required interests State See A l a . Dep't 2009, these which "can " i n t h e Alabama proceedings t h e new A c t g o v e r n s convincing J.B. v. C l e b u r n e this evidence, as Dept. o f ( A l a . C i v . App. 2008), still i s o f dependency. See A l a . Second, remain the standard that a child should Code were County and 12-15-311(a). of the c h i l d determination As and a finding 12-15-310(b) 1, 2009, clear i n , f o r example, to support §§ family. of i n t h e new A c t a r e t w o e s s e n t i a l Human R e s . , 992 S o . 2 d 3 4 , 40 court's ... o f a c h i l d , " ... s e x u a l a b u s e , o r a t t e m p t e d s e x u a l a b u s e made 1975, "the r i s k Alabama j u v e n i l e s t a t u t e s were r e w r i t t e n by sweeping amendments case. Section be removed f r o m i t s o f Human R e s . , 646 S o . 2 d 8 1 , 84 4 best for a juvenile 1975, § 1 2 - 1 5 - 1 0 1 ( b ) ( 2 ) - ( 3 ) ; 1994). the Code G.L. v . ( A l a . C i v . App. 2080818 The standard of j u d g m e n t b a s e d on ore of child dependency the trial and court. child custody tenus evidence i s d e f e r e n t i a l : "Matters custody Where o r e are tenus a w i t h i n the evidence i s presented, on a p p e a l o n l y u p o n a s h o w i n g t h a t i t was palpably wrong." F.G.W. v . As the supported does not 310(b); c l e a r and 12-15-311(a). by procedural evidence fact claim a firm M.E. So. 2d In this they 89, 2d 1, and the will plainly 5 be and (Ala. Civ. to 92-93 dependency and See convincing" terms must the A l a . Code 1975, similar new §§ used i n the mind of 12-15- in to the against the correctness be other trier to each e s s e n t i a l element of as be Act e v i d e n c e may t h a t , when w e i g h e d produce probability v. of evidence, convincing c o n v i c t i o n as conclusion." So. finding c o n t e x t s , as " [ e ] v i d e n c e high that a in opposition, w i l l and 911 " C l e a r and reference a 972 notes, change t h a t p r i n c i p l e . defined, of S.W., correct of cases). mother by i s presumed discretion reversed (citing court of of 2004) trial review judgment App. the appellate of the the S h e l b y C o u n t y D e p t . o f Human R e s o u r c e s , ( A l a . C i v . App. case, both the mother believed that the uncle 5 2007). and had the father testified s e x u a l l y abused one of 2080818 the children. that she had occasion. access In forensic interviews, witnessed The to the sexual admitted mother the to c h i l d r e n a f t e r the abuse were b r o u g h t to the the children stated that after everything s e e m e d t o be further boy, the t e s t i f i e d that ate DHR, and counsel, the children GAL of had the the remain worker advised in the the a l l the care. had of r e v i e w t h a t a p p l i e s not hear evidence sexual interviews, believe sexual abuse. perceived the the worker At counsel court Finally, still three-year-old bins. the that, mother foster-care trash to of have the trial, for that the the foster-care t h a t a l l f o u r c h i l d r e n were s u f f e r i n g standard court, The from recommended adjudicatory trial had f o s t e r - c a r e worker, the the she uncle. pending before uncle's one to would not transpired, even from e m o t i o n a l problems, but did of In stated than uncle suggestions youngest c h i l d , foster court the the mother at f i r s t "uncontrollably," father's more mother's a t t e n t i o n . that protective on allowing f o s t e r - c a r e worker t e s t i f i e d that even oldest child abuse first t h e m when t h e y c o m p l a i n e d t o h e r The the we that improved while hearing. Given to t h i s cannot say the c a s e , and that reasonably 6 in foster the could care deferential the evidence juvenile produce court in its 2080818 mind a f i r m c o n v i c t i o n as claims and a conclusion by their The court high that mother's at of The statements performed certain question to "No a counsel when a evidence, that issue Davis Southland Therefore, this we 12 party he have does i s not Corp., in served at not 465 the issue. 7 sexual acts 2d case The The the i f mother to mother's It the for appeal. 397, court objection objection." So. that confrontation-rights any object evidence dependency trial, had no a out-of- provides observed. preserved cannot reverse a interviews into describing are i s s u e , but I in admitted admissible whether s i r , Judge. of i s that provided children's interviews. that v. appeal constitutional this correctness 12-15-310(c), safeguards raise regarding § under be on improperly Act, children a d m i s s i o n of the law new DHR's care. children, were t h e m may mother's said, the DHR, procedural attempts the of on i n t e r e s t s w o u l d be second contention statements trial. to in foster the of c h i l d r e n ' s best remaining the each e s s e n t i a l element p r o b a b i l i t y as the c o n d u c t e d by to 401 juvenile court's is asked to the counsel settled admission See, (Ala. of e.g., 1985). judgment on 2080818 B a s e d upon t h e f o r e g o i n g f a c t s the judgment of the j u v e n i l e a n d a u t h o r i t i e s , we affirm court. AFFIRMED. Thompson, P.J., and Bryan, concur. 8 Thomas, and Moore, J J . ,

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