N.G. v. Pike County Department of Human Resources

REL: April 28, 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
_________________________

CL-2022-0965
_________________________

N.G.

v.

Pike County Department of Human Resources
__________________________

CL-2022-1000
___________________________

C.G.

v.

Pike County Department of Human Resources

Appeals from Pike Juvenile Court
(JU-22-44.01)
CL-2022-0965 and CL-2022-1000

EDWARDS, Judge.

In May 2022, the Pike County Department of Human Resources

("DHR") filed a dependency petition in the Pike Juvenile Court ("the

juvenile court") seeking to have S.G. ("the child"), the child of N.G. ("the

mother") and C.G. ("the father"), declared to be a dependent child. After

a trial held on July 25, 2022, the juvenile court entered a judgment on

August 1, 2022, determining the child to be a dependent child, awarding

his legal custody to DHR, and relieving DHR of making reasonable efforts

to reunify the child with the mother and the father. The mother filed a

postjudgment motion, which the juvenile court denied on August 27,

2022, and the mother filed a timely notice of appeal on September 3, 2022.

Her appeal was docketed as case number CL-2022-0965.

The juvenile court, in compliance with Ala. Code 1975, § 12-15-

312(e), held a permanency hearing on August 29, 2022. After that

hearing, the juvenile court entered a permanency order on September 1,

2022, approving the concurrent permanency plans of adoption by current

foster parent or adoption by an unidentified resource. The father filed a

motion seeking reconsideration of the September 1, 2022, permanency

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order and a notice of appeal from that order on September 15, 2022. The

juvenile court denied the father's motion to reconsider on September 18,

2022. The father's appeal was docketed as case number CL-2022-1000.

We consolidated the mother's appeal and the father's appeal ex mero

motu.

The juvenile court took testimony relating to the child's dependency

at several evidentiary hearings, including at two shelter-care hearings

held on May 12, 2022, and on June 1, 2022, at a hearing on the mother's

motion to amend the shelter-care order and for visitation held on June

27, 2022, and at the trial on the dependency petition held on July 25,

2022. 1 The testimony and evidence presented at those hearings reveals

that the child was initially taken into DHR's custody on May 11, 2022,

when Joseph Donofrio, a law-enforcement officer employed by the City of

Troy Police Department, contacted DHR during his response to a

1The transcript of the trial on the dependency petition, which was
transcribed from a video recording, reflects that the dependency trial was
held on July 14, 2022; however, the record reflects that, although the
dependency trial was, at one time, scheduled for July 14, 2022, the
juvenile court granted a motion to continue the trial and rescheduled it
for July 25, 2022.
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CL-2022-0965 and CL-2022-1000

domestic-violence incident between the mother and the father. Donofrio

testified that the father had requested that law-enforcement officers

come to the mobile home in which he and the mother were living when

the mother returned to that mobile home after her release from jail,

following the expiration of a 24-hour hold resulting from her arrest for

domestic violence on or about May 10, 2022. Donofrio indicated that the

father reported that the mother was beating on the door and that he was

concerned that the mother was not taking her mental-health medication

or had possibly taken illegal drugs. According to Donofrio, the mother

was upset and wanted to leave the residence with the child, who was in

the mobile home with the father.

Donofrio described the mobile home as being in a state of

"renovation," with extension cords lying around the interior of the mobile

home and bare plywood floors. He also said that the mobile home was

"not really a good place for a baby." Donofrio said that the parents were

known to local law-enforcement officers because of the number of

domestic-violence calls received from the mother and the father. He

testified that, to his knowledge, neither the mother nor the father had

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transportation or employment and neither had friends or family in the

area.

Donofrio then described his attempts to persuade the father to

relinquish the child to the on-call DHR caseworker, Amy Floyd. Donofrio

said that the father was uncooperative and that the father, who was

holding the child in his arms, had walked to a table in the bedroom and

picked up a knife. According to Donofrio, he became concerned for the

safety of the child and that the incident might become a hostage

situation, so he unholstered his taser, which, he said, had prompted the

father to return the knife to the table. Donofrio admitted that he had

been unable to establish a rapport with the father, so, Donofrio said, he

had requested that another law-enforcement officer attempt to convince

the father to relinquish the child to DHR, which attempt, he said, had

been successful.

Floyd testified similarly regarding the incident with the knife. She

described the father as being uncooperative and belligerent and reported

that he had used profanity during the incident. According to Floyd, the

mother had been very angry when Floyd arrived at the mobile home that

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evening. Floyd also said that the mother was emotional and crying and

that she had used profanity but that she had later calmed down. She

testified that the mother had told her that evening that she had nowhere

to go and that she and the father had no relatives in the area.

The mother testified that she has 10 surviving children and that

the father is the father of 9 of those children. She admitted that, as of

the date of the dependency trial, none of her children lived with her or

had been reared by her. In fact, the mother admitted that she had

voluntarily relinquished her parental rights to at least five of her

children and that her parental rights to two of her children had been

involuntarily terminated by an Alabama court. The mother testified that

she and the father had been in a relationship for 15 years. She described

their relationship as abusive but also admitted that, at times, she had

been the perpetrator of domestic violence between her and the father.

The mother testified that she had left the father in October 2021

and entered a domestic-violence shelter for homeless pregnant women in

Baldwin County called Mary's Shelter Gulf Coast ("the shelter").

Although the mother indicated that she had been doing well in the

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shelter, where she had received counseling, had participated in Narcotics

Anonymous ("NA") meetings, had been pursuing her GED, and had

maintained employment, she admitted that she still contacted the father

on a regular basis. She explained that she had left the shelter in January

2022 and had returned to Troy only to realize that the father had not

become sober and had not renovated the mobile home with the money

that she had been sending him. She said that, when she realized that

the father had lied to her, she had returned to the shelter.

The mother further testified that, after she had delivered the child

in March 2022, she again contacted the father and, in early May 2022,

again returned to Troy. She testified that she had again realized that

the father was not sober, that he had not renovated the mobile home, and

that she had made a mistake by returning to Troy so that they could "co-

parent." The mother candidly admitted that, despite having been clean

and sober since October 2021, she had smoked weed and

methamphetamine in early May 2022 when she reunited with the father.

The mother testified that, after the May 11, 2022, incident, she had

returned to Baldwin County to live with a friend and that she had been

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CL-2022-0965 and CL-2022-1000

reaccepted into the shelter in June 2022. However, at the time of the

dependency trial in July 2022, the mother was no longer living at the

shelter and was no longer enrolled in any shelter-sponsored programs.

She said that she had been asked to leave the shelter after she had an

emotional outburst at an event for the residents of the shelter on July 4,

2022. The mother testified that, at the time of the dependency trial, she

was seeking treatment for her mental-health issues, was still taking the

medication prescribed for her depression, was regularly attending NA

meetings, was employed, and had secured a vehicle.

The mother also testified that she had secured a protection-from-

abuse order against the father and that she was planning to file for a

divorce from the father. She said that she had not spoken with the father

since she had last left Troy and that she did not intend to reinitiate

contact with the father or to resume their relationship. The mother

admitted, however, that she had left the father on previous occasions and

had returned to resume the relationship.

The father testified that he was participating in and had good

standing with drug court. He indicated that he had been passing all of

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his drug tests and that he had been clean for almost one year. The father

specifically denied that he had smoked marijuana or methamphetamine

with the mother in May 2022. He admitted that he had been arrested

approximately 30 times for domestic violence but said that he had never

been convicted.

According to the father, he and the mother had always planned for

her to return to Troy after the child was born. He said that the mother

had called him almost daily from the shelter. He testified that, when the

mother had returned to Troy in May 2022, he had thought that she was

"clean" and that they would "give it a try," but, he said, the mother had

been "no different."

Like the mother, he indicated that he did not intend to resume their

abusive relationship. He said that he had not been served with divorce

papers and that he had intended to file for a divorce himself on the

Wednesday following the dependency trial, which was held on Monday,

July 25, 2022. According to the father, he is employed and works from

4:30 p.m. to 2:00 a.m. He said that he had located a daycare in the area

that would provide care to the child during those hours.

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CL-2022-0965 and CL-2022-1000

Tiffany Parker, the foster-care caseworker assigned to the child's

case, testified that DHR's concerns about the parents were founded on

their history of domestic violence and drug use. She explained that the

mother and the father both had pending domestic-violence charges.

Parker said that the father was participating in drug court and that he

had been testing negative for illegal substances. She also said that the

mother had tested positive for methamphetamine on a June 30, 2022,

hair-follicle dug test but that the results of the mother's most recent drug

test had not yet been received by DHR.

Parker testified that DHR was also concerned by the fact that not

one of the mother's and the father's children were in their custody. She

testified that DHR had successfully sought the termination of their

parental rights to the child's siblings, M.G. and U.G.; the judgment of the

Crenshaw Juvenile Court terminating the parental rights of the mother

and the father to U.G. and the judgment of the juvenile court terminating

the parental rights of the mother and the father to M.G. were admitted

into evidence and are contained in the record on appeal. According to

Parker, she had informed both the mother and the father that DHR

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intended to pursue the termination of their parental rights. She also

indicated that DHR had recently been given the name of the mother's

father ("the maternal grandfather") as a potential resource but said that

the maternal grandfather had been rejected by DHR in the case involving

M.G.

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.

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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).

The term "dependent child" is defined in Ala. Code 1975, § 12-15-

102, 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.
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"5. Whose parent, legal guardian, legal
custodian, or other custodian has abandoned the
child, as defined in [Ala. Code 1975, §] 12-15-
301[(1)].

"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."

The Mother's Appeal

In her brief on appeal, the mother challenges the juvenile court's

dependency finding. She also complains that the juvenile court erred by

not awarding her visitation with the child. We affirm the juvenile court's

judgment.

The mother argues that the child does not meet the definition of a

dependent child found in § 12-15-102(8)a. She specifically contends that

the child

"was not subject to any abuse or neglect by the mother, was
not without a parent willing and able to provide for him, was
not deprived of any necessary medical care, was not being
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withheld from school, was not abandoned, was not without a
parent willing and able to discharge he responsibilities to the
child, was not placed for care or adoption in violation of the
law, and was not in need of the care and protection of the
state."

We disagree.

The mother has not maintained custody of any of her 10 children.

Most recently, in March 2020, the Crenshaw Juvenile Court terminated

her parental rights to U.G., and, in September 2021, the juvenile court

terminated her parental rights to M.G. The mother and the father had a

long history of domestic violence, the mother had repeatedly resumed her

tumultuous relationship with the father after attempting to leave him,

and the mother admitted to using methamphetamine and marijuana in

May 2022 after having spent considerable time avoiding drug use while

at the shelter. The judgments terminating the mother's parental rights

to U.G. and M.G. recite facts indicating that the mother failed to submit

to drug testing, failed to complete drug treatment, failed to cooperate

with DHR and the reunification plan, and failed to adjust her

circumstances to meet the needs of her children.

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Although this appeal arises from a dependency action and not a

termination-of-parental-rights action, we find Ala. Code 1975, § 12-15-

319(a)(8), instructive in this situation. Section 12-15-319(a)(8) provides

that a juvenile court, when "determining whether or not [a] parent[] [is]

unable or unwilling to discharge [his or her] responsibilities to and for

the child" in a termination-of-parental-rights proceeding, may consider

the fact "[t]hat parental rights to a sibling of the child have been

involuntarily terminated" to support such a determination. Pursuant to

§12-15-102(8)a.6., a child may be determined to be dependent when the

child "is in need of care or supervision" and has a "parent … unable or

unwilling to discharge his or her responsibilities to and for the child."

The termination of the mother's parental rights to U.G. and M.G.

supports a conclusion that "the mother is unable or unwilling to

discharge her responsibilities to and for the child" and therefore also

supports a conclusion that the child is dependent. Accordingly, we reject

the mother's argument that the juvenile court lacked sufficient evidence

to support its conclusion that the child was dependent.

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We also reject the mother's argument that the juvenile court erred

by not awarding her visitation with the child. The mother is correct that

this court has quite often reversed judgments that permit a custodian to

have unfettered discretion over the visitation rights of a noncustodial

parent of a dependent child. See, e.g., J.C. v. Houston Cnty. Dep't of

Hum. Res., 313 So. 3d 1137, 1141 (Ala. Civ. App. 2020); D.B. v. Madison

Cnty. Dep't of Hum. Res., 937 So. 2d 535, 541 (Ala. Civ. App. 2006)

(plurality opinion) ("This court has previously held that it is reversible

error for a trial court to leave a noncustodial parent's visitation rights

with his or her child to the discretion of the custodial parent or other legal

custodian of the child."). Although the mother, as a parent of a dependent

child, retains, as a residual parental right, "the right of visitation," Ala.

Code 1975, § 12-15-102(23), nothing in the Alabama Juvenile Justice Act,

Ala. Code 1975, § 12-15-101 et seq., requires that a juvenile court award

visitation to a parent of a dependent child. Instead, "a [juvenile court]

has broad discretion to determine a parent's right to visitation with a

dependent child[,] and … the best interests and welfare of the child is the

primary consideration in determining whether to award visitation and,

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if so, the extent of that visitation." Y.N. v. Jefferson Cnty. Dep't of Hum.

Res., 67 So. 3d 76, 82 (Ala. Civ. App. 2011) (emphasis added).

The juvenile court's extensive discretion over the disposition of

dependent children is set out in Ala. Code 1975, § 12-15-314(a)(4), which

provides that a juvenile court may "[m]ake any other order as the juvenile

court in its discretion shall deem to be for the welfare and best interests

of the [dependent] child." In this particular case, in which DHR has been

relieved of making reasonable efforts to reunify the child with the mother

and the father and has already informed the mother that it intends to

pursue termination of her parental rights and in which the permanency

plan is adoption by current foster parent, the juvenile court could

reasonably have determined that an award of visitation to the mother

would not serve the child's best interest. Thus, we cannot conclude that

the juvenile court erred by failing to award the mother visitation with

the child.

The Father's Appeal

As explained in the procedural history, the father's appeal was

taken from the September 1, 2022, permanency order and not from the

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August 1, 2022, dependency judgment. In his brief on appeal, the father

argues that the juvenile court erred to reversal by failing to hold a

permanency hearing within 30 days of the determination that DHR was

relived of making reasonable efforts to reunite the mother and the father

with the child.2 See § 12-15-312(e) (providing that, "[i]f reasonable efforts

are not made with respect to a child as a result of a determination made

by a juvenile court in situations described [in § 12-15-312(c)], a

permanency hearing … shall be held for the child within 30 days after

the determination"). He also argues that DHR failed to consider the

maternal grandfather as a potential relative resource before seeking to

be relieved of the duty of providing reasonable efforts. However, the

father's appeal suffers from a jurisdictional defect -- the September 1,

2022, permanency order did not adjudicate any rights of the father and

therefore cannot support an appeal. Ex parte F.V.O., 145 So. 3d 27, 30

(Ala. 2013). Accordingly, we dismiss the father's appeal.

2We note that the determination that DHR was not required to
make reasonable efforts to reunify the father and the child was made in
the August 1, 2022, dependency judgment and that the August 29, 2022,
permanency hearing was held within that 30-day period.
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Conclusion

Because we have rejected the mother's arguments, we affirm the

judgment of the juvenile court declaring the child dependent in appeal

number CL-2022-0695. Because the September 1, 2022, permanency

order does not affect the substantial rights of the father, that order

cannot support the father's appeal, and the father's appeal in appeal

number CL-2022-1000 is dismissed.

CL-2022-0965 -- AFFIRMED.

CL-2022-1000 -- APPEAL DISMISSED.

Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.

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