J.G. v. M.B., S.B., and Morgan County Department of Human Resources (2024)

On April 21, 2022, the Morgan County Department of Human Resources (“DHR”) filed in the Morgan Juvenile Court (“the juvenile court”) petitions seeking to have J.C.G. and J.B.G. (“the children”), the twin children of K.B. (“the mother”) and J.G. (“the father”), declared dependent; the petition relating to J.C.G. was assigned case number JU-22-638.01, and the petition relating to J.B.G. was assigned case number JU-22-640.01. The record indicates that the children were initially placed with their maternal great-grandmother, B.B. (“the maternal great-grandmother”), pursuant to a safety plan; however, they were placed into foster care in July 2022, around the same time as the initial adjudicatory hearing on DHR's dependency petitions, after which the juvenile court determined that they were dependent children.

In March 2023, the juvenile court entered a permanency-review order in each action in which it approved of the permanency plan of adoption by the children's current foster parents, S.B. and M.B. (“the foster parents”). In October 2023, the foster parents filed petitions seeking custody of the children; the juvenile court treated those petitions as motions to intervene in the dependency actions and granted the motions. The juvenile court also set a trial on the foster parents' requests for custody for February 15, 2024.

The mother and the father answered the foster parents' requests for custody and jointly moved to stay the February 15, 2024, trial on those requests pending resolution of criminal charges that both the mother and the father were facing. The juvenile court denied the motions to stay. The trial was commenced on February 15, 2024, and was completed on February 16, 2024. On February 20, 2024, the juvenile court entered a judgment in each action finding that each child remained dependent and awarding custody of each child to the foster parents. The mother and the father filed timely notices of appeal in both actions.¹

A “dependent child” is defined in Ala. Code 1975, § 12-15-102(8), to include:

“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.

“․

“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.

“․

“8. Who, for any other cause, is in need of the care and protection of the state.”

We have explained that

“ ‘[t]he test [for determining whether a petitioner has established a child's dependency] is whether [the petitioner] has presented clear and convincing evidence demonstrating that the parental conduct or condition currently persists to such a degree as to continue to prevent the parent from properly caring for the child.’ M.G. v. Etowah Cty. Dep't of Human Res., 26 So. 3d 436, 442 (Ala. Civ. App. 2009) (plurality opinion). 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 D.P. v. State Dep't of Human Res., 571 So. 2d 1140 (Ala. Civ. App. 1990). This court cannot reweigh the evidence presented to the juvenile court, and we cannot revisit its conclusions about the credibility of the witnesses before it. See Ex parte R.E.C., 899 So. 2d 272, 279 (Ala. 2004). Although 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 reviewing a dependency judgment on appeal, ‘[t]his court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing.’ K.S.B. v. M.C.B., 219 So. 3d 650, 653 (Ala. Civ. App. 2016). That is, this court ‘ “must ․ look through [‘the prism of the substantive evidentiary burden,’ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986),] to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would ‘produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’ ” ’ K.S.B., 219 So. 3d at 653 (quoting Ex parte McInish, 47 So. 3d 767, 778 (Ala. 2008), quoting in turn Ala. Code 1975, § 25-5-81(c)).”

H.A.S. v. S.F., 298 So. 3d 1092, 1097-98 (Ala. Civ. App. 2019).

The record contains the testimony of over a dozen witnesses, including the mother, the father, and the foster parents. The DHR caseworker assigned to the family, Stephanie Chasteen, testified that she was assigned to the case in August 2022, shortly after the children had been placed into foster care. She explained that the children had been removed from the custody of the mother and the father in February 2022 based on allegations that they had been abusing illegal drugs and that their older child, K.G., had been taking care of the children, who were approximately 18 months old at that time. Chasteen said that the children originally had been placed in the custody of the maternal great-grandmother pursuant to a safety plan but that, in July 2022, the children had been placed briefly in the home of temporary foster parents before being placed with the foster parents in August 2022.

According to Chasteen, the father had been incarcerated between May 2022 and January 2023 and DHR had been unable to offer him services during that time. She said that, during that same period, DHR had offered the mother a substance-abuse assessment and had required her to regularly submit to drug tests. She further testified that DHR had also required the mother to obtain and maintain employment and to maintain suitable housing. Chasteen stated that the mother had already begun taking parenting classes at the time. She explained that the father had been offered similar services upon his release from jail, although she did not state exactly when and exactly what services had been instituted for the father.

Chasteen admitted that the mother's last positive drug test had been in January 2023 and that the mother had continued to regularly test negative on drug tests required by DHR after January 2023. She also admitted that the mother had completed substance-abuse treatment. However, she testified that DHR had continued concerns about the mother's potential for continued drug use; Chasteen explained that the concerns were based on the mother's history of relapse, which was, in turn, apparently based on the mother's previous addiction to opioids, from which she had recovered in 2014, after attending a drug-court program and substance-abuse treatment. Chasteen stated that DHR feared that the mother would not be able to maintain sobriety while also parenting the children. She said that the mother had continued to use methamphetamine throughout 2022 and had not become sober until after the father had been released from jail in January 2023. Thus, she testified that DHR was concerned that, if the father were to be sentenced to prison, the mother would be unable to maintain her sobriety.

Chasteen admitted that DHR had filed petitions to terminate the parental rights of the mother and of the father to the children in May 2023 but that the actions had been dismissed on motions filed by DHR in July 2023. She explained that, at that time, the mother and the father had been complying with services and that, after the termination-of-parental-rights actions had been dismissed, the permanency plan had been changed to a concurrent plan of adoption by the current foster parents and “return to parent.” Chasteen testified that DHR had decided to attempt reunification of the mother and the father with the children in August 2023, only to halt the reunification efforts in November 2023, after Chasteen learned that the mother and the father had both been indicted on felony charges. Chasteen said that she had begun reunification efforts in August 2023 because the mother and the father had made progress and because they had told her that their criminal charges had been resolved. She admitted that she had not verified those representations. The mother was indicted in August 2023 for a drug charge arising from a March 2022 search of the residence that she shared with the father. The father was indicted in April 2023 and again in August 2023; he was indicted for the same drug charge as the mother and for over a dozen charges involving his allegedly breaking into vehicles, stealing firearms, and altering, or attempting to alter, the serial number on those firearms.

According to Chasteen, at the November 2023 individualized-service-plan “(ISP”) meeting, the ISP team decided to reduce the visitation that the mother and the father had been exercising and to discontinue the plan to transition the children to the home of the mother and the father mainly because of the criminal indictments. Chasteen testified that the team had also considered the fact that the children had begun experiencing some behavioral issues after visitation had been increased. She explained that the children had become more physically aggressive toward each other and that one of the children had regressed in his toilet training. In addition, Chasteen indicated that, during the reunification phase, the mother and the father “were discussing [with the children] about them coming home and things that they had for them at their house,” which, she said, had contributed to the children's behavioral changes.

Chasteen testified that DHR would not consider further reunification of the children with the mother and the father until their criminal charges were resolved. She said that, based on a conversation that she had had with someone at the district attorney's office, she had learned that the father, who had already served a prison sentence for at least one felony, was likely facing a substantial prison sentence because he was a habitual offender. She stated that the person at the district attorney's office had also told her that the mother would likely face a prison sentence because, she, too, was a habitual offender; however, other evidence presented at the trial indicates that the mother is, in fact, not a habitual offender.

Chasteen opined that the children's best interest would be served by their being placed in the custody of the foster parents. She testified that the home of the foster parents was appropriate for the children. She further testified that the children were bonded to the foster parents and that the foster parents were bonded to the children.

The record reflects that the juvenile court took judicial notice of a court report that had been submitted in support of a permanency-plan review hearing that had been held shortly before the trial. Because that court report was not a part of the record in the dependency actions, counsel for the father requested that the record be supplemented with the court reports contained in the juvenile court's file; the juvenile court granted that request, and three court reports are included in the supplemental record. The March 2023 court report indicates that the father was released from incarceration in January 2023 and states that, at that time, the father was attending an inpatient substance-abuse-treatment program. The August 2023 court report states that the father was incarcerated in May 2022 and was released from incarceration in January 2022, which is clearly a typographical error. The August 2023 court report also states that the father had “recently” returned to live with the mother, but it gives no date; it also seems to indicate that the father began “community corrections” both once he was released from incarceration in January 2023 and also on some unspecified date after he completed the inpatient substance-abuse-treatment program that he was attending in March 2023, per the March 2023 court report. The August 2023 court report also states that the mother's criminal charges had been resolved and that the father's criminal charges might be dismissed once he completed a drug-court program, in which the court report reflects the father was currently enrolled.

The mother, who was 34 years old at the time of the trial, testified that the children had been removed from the custody of her and the father on February 25, 2022. She said that she and the father were not married but that they had a long-term relationship. The mother testified that she had become employed at the Target Distribution Center in December 2022 and that she remained employed at that company at the time of the trial. She said that she had secured an appropriate residence, in which she had resided for two years, and that she had also purchased a used vehicle that had ample space to transport the family, which included her, the father, the children, and the mother and the father's older daughter, K.G., who, at the time of the trial, was residing with the mother's parents.

The mother admitted that she had been indicted in August 2023 on one count of unlawful distribution of a controlled substance and that she had learned of her indictment in October 2023 from Chasteen. She also admitted that she had begun using methamphetamine in late 2021 and that she had continued to use methamphetamine periodically throughout 2022, stating specifically that, although she had attempted sobriety after the children were initially removed from her custody, she had “relapsed” in July 2022 when the children were placed into foster care. The mother testified that she had last used methamphetamine in December 2022. She said that she had submitted to weekly drug tests throughout her involvement with DHR and that she had not had a positive drug test since December 2022.

The mother testified that she had had an opioid addiction in 2013. She explained that she had been charged with a drug offense in 2013 but that she had participated in and completed a drug-court program and substance-abuse treatment and that the criminal charge had been dismissed as a result. According to the mother, she had been informed by Chasteen that she would not be eligible for a drug-court program for her current criminal charge. She said that she had remained sober between 2013 and late 2021. When asked about statements that she had made during a psychological evaluation that was not admitted into evidence, the mother admitted that she had told the psychologist, Dr. Dan Lowery, that she had smoked marijuana when she was 17 years old.

Counsel for the foster parents questioned the mother extensively about the recommendation in her December 2022 drug assessment that she attend an inpatient substance-abuse-treatment program. According to the mother, she had discussed that recommendation with the assessor and had explained that she could not attend inpatient treatment at that time because she needed to maintain her residence and because she was in the process of being hired at the Target Distribution Center, both of which were aimed at completing goals required of her by DHR. The mother said that she had never understood that her failure to enter an inpatient treatment program would prevent her from being reunited with the children. She also denied that DHR had ever made attendance at an inpatient treatment program a part of her ISP. The February 2023 court report indicates that, because of the mother's financial circumstances, the ISP team had agreed that the mother could attend an outpatient treatment program.

When questioned about the potential for relapse, the mother testified that she did not believe that relapse was likely. The mother said that she was “past the little triggers that this case used to do with me.” She explained that she had two main reasons why she would not relapse: her desire to be reunited with the children and the knowledge that continued use of methamphetamine would kill her. She said that her father was a recovering drug addict who was supporting her in her sobriety and that he was available for her to talk to for support. She also explained that her family would assist her with taking care of the children by providing transportation to and from school or activities or taking the children to appointments if she could not do so because of her work schedule. She said that she regularly attended Alcoholics Anonymous (“AA”) meetings. She also testified that she had received support from Jasmine Moore and Laura Christenson, the two Safe Alternative for Families and Youth (“SAFY”) counselors from whom she had been receiving weekly in-home counseling since August 2023. The mother further pointed out that she had been sober since December 2022 and that, contrary to Chasteen's attribution of the mother's sobriety to the presence of the father in the home, she had begun and maintained her sobriety while the father attended an inpatient substance-abuse-treatment program that he had completed in August 2023. She testified that she would be able to pay the family's bills with her income; that, in fact, she currently used only her income to maintain the household; and that she had been able to maintain her home while the father was in the inpatient substance-abuse-treatment program.

The mother also testified that she expected, based on the sentencing-guideline form in the record and the advice of her criminal counsel, that she would receive probation when sentenced on her criminal charge. She said that she had discussed the criminal indictment with her supervisor at the Target Distribution Center because someone had made an anonymous telephone call to report the indictment to her superior. The mother testified that, because of that discussion, she did not believe that her conviction or likely sentence of probation would cause her continued employment to be in jeopardy.

When the mother was questioned about the health of the children, she admitted that she had been aware that the children had suffered from a potential speech delay. She said that the children's pediatrician had provided her information and had instructed her to work with the children on their vocabulary, but, she said, at the time, the children had not been old enough for speech therapy. She said that she had not been included in the children's speech therapy that had been administered while they were residing with the foster parents.

The father testified that he was 35 years old and that he had several previous felony convictions. He also admitted that he had been indicted in 2023 on several more felony charges. According to the father, although he had applied for a drug-court program, he had recently been denied participation in that program based on the criminal charges relating to firearms.

Like the mother, the father admitted that he had a substance-abuse problem. He said that his last use of methamphetamine had been on May 3, 2022, shortly after which he had been incarcerated until January 2023. He also testified that, immediately after he was released from jail in January 2023, he had entered an inpatient substance-abuse-treatment program, where, he said, he had resided until August 2023.

According to father, her had remained in contact with the mother during his stay at the inpatient substance-abuse-treatment program. He said that she had come to some classes for family members offered by the program and that, after three months, he had received passes permitting him to return to the family's home on the weekends. When asked if he thought that he was a stabilizing influence on the mother, he said: “I can't disagree with what you are saying.” He also testified that he did not have concerns that the mother would likely relapse because, he said, she had been sober for a year. Like the mother, the father testified that he had benefited from counseling with Moore and Christenson. He said that the counseling had addressed with him and the mother the possibility of relapse and the effect that his going to prison would have on the family.

The father testified that he agreed with DHR that reunification should not take place before the criminal charges that were being faced by him and the mother were resolved. However, he said that he did not agree with the way DHR had handled the situation or with DHR's decision to reduce his and the mother's visitation with the children. He said that the mother had shown progress and that she was capable of taking care of herself and the children.

When recalled as a witness near the conclusion of the trial, the father testified that he and the mother had been in a relationship for 16 years. He further testified that he had become employed by Northwest Refrigeration a few weeks after he completed the inpatient substance-abuse-treatment program and that he paid child support through an income-withholding order. The father said that he regularly attended his SAFY counseling sessions and that he attended 2 AA meetings per month; he also indicated that he had an AA sponsor and that he had completed the 12 steps of the AA program.

When questioned about whether he had consumed alcohol as indicated on his drug tests from December 27, 2023, and February 7, 2024, the father admitted that he had. He testified that he had consumed NyQuil before the December 27, 2023, test but then also seemed to indicate that he had also consumed vodka around that date. He admitted that he had had vodka in early February. The father denied having become drunk on either occasion and said that the mother had not been aware that he had consumed alcohol. When pressed on the issue, the father admitted that his use of alcohol prevented him from claiming that he had maintained sobriety.

S.B. (“the foster mother”) testified that she was an elementary-school teacher and that she and M.B. (“the foster father”) had been married for four and a half years. She said that their income was “close to $10,000” per month and described their home as having four bedrooms and two bathrooms. The foster mother said that the home comfortably housed her, the foster father, the foster father's 20-year-old daughter, and the children. She said that she and the foster father had become licensed as foster parents in August 2022, the same month that the children were placed in their home.

She described the children as having been small when they were placed in her care and stated that, in her opinion, they had had protruding bellies, which, she said, had indicated to her that they had been deprived of food.² She said that when she had offered them food they would “eat and eat and eat” and that they would take each other's food. She also said that, although the children were 26 months old when they were placed in her home, they spoke only a few words and had communicated with lots of grunts and crying. In addition, she remarked that it had taken the children a few days to “warm up” but that, once they had, the children were “very clingy like they needed that security.”³

She explained that, when visitations with the mother and the father had increased after August 2023, the children had become more aggressive with each other. She said that the children would not nap after visits with the mother and the father and that they had not listened to the foster parents as readily. She described the children after returning from visits as wild, upset, and hard to console for the next few days. She said that the children's aggression had improved once the visits were reduced to once per week, from 9:00 a.m. to 5:00 p.m. on Saturdays. The foster mother further reported that one of the children had regressed in his toilet training during the period of increased visitation; she stated that he was not having accidents but had seemed to purposefully urinate outside the restroom. She complained that the increased visitation had made the children's lives “so hectic, the back and forth and all the time they were spending in the car going back and forth.” She also complained that the children had returned from some of the visits hungry and dirty despite the fact that the mother and the father had been directed to feed the children nutritious meals and to bathe them during the visits.

The foster mother testified that the children had attended speech therapy while in her care. She expressed concerns about their “coping skills,” stating: “I mean, I know they are toddlers but not being able to convey what they're wanting or their ․ emotional needs.” In addition, the foster mother reported that the children had suffered from “chronic” ear infections; she said that they had had tubes placed in their ears in February 2023.⁴

Although she denied having had any direct contact with the mother and the father, she said that the foster father had had direct contact with the father through text messages. She testified that the mother and the father had “insisted” at ISP meetings that their criminal charges would be resolved through participation in a drug-court program, probation, or otherwise. She also testified that the issues regarding the children's behavior had been addressed in ISP meetings held before November 2023.

The foster father testified that he was 42 years old and that he was not employed. He said that he collected $6,200 each month in benefits from the United States Department of Veterans Affairs. He described the children as having been “sad” when they arrived at the foster parents' home.

Like the foster mother, he explained that the children's aggressiveness had increased when visitations between the children and the mother and the father had increased. He also commented that he had been able to handle the aggressiveness when it occurred at home but that he had been more concerned when the children began acting more aggressively at school. The foster father described the children as having more emotional reactions to “things” than his biological daughters had.

Kristine Price testified that she had served as the children's speech therapist between October 2022 and June 2023. She said that the children had been diagnosed with a speech delay and that, although they were aged 28 months in October 2022, their language skills were evaluated to be around those of 17-month-old children. She explained that, after eight months of therapy, the children had made significant improvements and had acquired age-appropriate language and communication skills. When asked what might have contributed to their delayed speech skills, Price testified that numerous factors could have contributed, including that the children were twins, that they had had recurrent ear infections, their home structure, and parental involvement.

Theresa Eddleman testified that she was the director of GaGa's Early Years Preschool and that the children attended that school. She testified that the children's behavior had altered after visitations with the mother and the father “started.”⁵ She recounted that the children would hit each other and remarked that the children “sometimes don't know what to do with all of their emotions.” When questioned about more specific examples of the children's behavior, Eddleman reported that, after the visits became unsupervised, the children had seemed confused, defiant, and angry and would refuse to sit on their mats. She also testified that the children had regressed in toilet training and had had more accidents within the six months preceding the trial.⁶ Interestingly, Eddleman said that the children were happy to see the mother and the father when they were picked up for visitations and yet described the children as “being clingy” toward the foster mother on the mornings that visitations were scheduled.

Shelbi Moya, the supervisor of the court-appointed special-advocate program, testified that, based on statements made either at an ISP meeting or at a home visit with the mother and the father, she had been under the impression that the criminal charges faced by the mother and the father had been resolved and that neither parent would likely serve any time in prison. She later testified that the mother and the father had represented that their criminal charges “might” be resolved by participation in a drug-court program or by the father's attendance at his substance-abuse-treatment program. She stated her opinion that the children should “stay” with the foster parents “for permanency purposes.”

Moya testified that her concern was that, if the father went to prison, the mother would relapse into drug use. She stated no factual basis for that concern. When asked if the fact that the mother had become sober and had remained sober during a nine-month period before the father returned to their home would alleviate her concerns, she indicated that it would not. Moya also testified that concerns about the children's behavior had been discussed at ISP meetings that had occurred before the November 3, 2023, meeting at which active reunification was discontinued.

Christenson testified on behalf of the mother and the father. She said that she was a case manager for SAFY, that she was a certified addictions counselor, and that she had been assigned to the family's case in August 2023. She explained that her role was to provide psychoeducation services in parenting skills and substance abuse to the mother and the father. In addition, she said that SAFY also provided the mother and the father with family counseling.

Christenson said that she had provided her services to the mother and the father in their home once a week for one to one-and-a-half hours. She described the mother and the father as compliant and consistent. Christenson said that she had counseled the mother and the father on coping mechanisms as part of their substance-abuse counseling, and she stated that she had supervised the development of a relapse-prevention plan for each of them. She specifically noted that the mother and the father had been receptive to counseling relating to those particular issues and that they had made progress in those areas. She remarked that she had witnessed navigation of stressors by the mother and the father and had observed that they had coped with those stressors in a very healthy and mature way. She indicated that the mother and the father had considered their sobriety in everything that they did. In addition, Christenson testified that the mother and the father had met their goals in counseling and had, in fact, exceeded her expectations because they had remained sober.

According to Christenson, she had observed interactions between the mother and the father and the children on several occasions. She described the mother and the father as loving and attentive and remarked that she had not observed anything that concerned her. She said that the children seemed very bonded to the mother and the father. She testified that their interactions had appeared “normal, typical, and entirely appropriate.” She also stated that the children had not appeared to be neglected or hungry and that they had always been appropriately groomed when she was in the home during visits.

When questioned about whether the recommendation in the December 2022 substance-abuse assessment that the mother undergo inpatient substance-abuse treatment concerned her, Christenson said that the mother had completed outpatient substance-abuse treatment and had been doing well; thus, Christenson indicated that she did not think that the mother should go back and complete inpatient treatment at that time. Christenson recognized that the mother and the father would face significant stressors, like having to navigate the criminal-justice system, but, she said, that was the reason that she had required the mother and the father to develop a relapse-prevention plan. When asked if coping mechanisms that the mother and the father had been taught would always work, Christenson admitted that they may not. She testified, however, that she did not have significant concerns that the mother would relapse, even if the father was sentenced to prison, because, she said, she believed that the mother had the support and the coping mechanisms to avoid relapse. She remarked: “[Y]ou can be concerned that anybody could relapse, but it doesn't mean that they will.”

When asked if she was aware that the father had consumed alcohol in the recent past, Christenson indicated that she was not. She said that his using alcohol did raise concerns for her. She testified that she would address with the father the risk of using any substances, including alcohol, in the next counseling session.

Moore testified that she was the lead clinical therapist at SAFY. She said that she had begun providing counseling for the mother and the father in August 2023 and that she had counseled them once per week, typically for one hour. Like Christenson, Moore testified that she had addressed with the mother and the father topics including relapse prevention and coping strategies. She also described the mother and the father as having been engaged and fully participating in counseling. Moore said that the mother and the father had made progress and were completing treatment-plan goals. She noted that she had observed interactions between the children and the mother and the father on three occasions and that they had all seemed very happy together.

Like Christenson, Moore stated that the father's recent use of alcohol would raise concerns for her. Although she admitted that the father had not told her or Christenson about his use of alcohol, she indicated that she was not necessarily concerned that the father was not utilizing his coping skills because, she said, he had other people on his support list to whom he could have turned. Moore stated her disappointment that DHR personnel or other members of the ISP team had not communicated the father's use of alcohol to her or anyone at SAFY so that the issue could be addressed in counseling.

Jeffrey McRae, a detective with the Decatur Police Department, testified that he had investigated a series of vehicle break-ins in 2022. He explained that, during the March 2022 execution of a search warrant on the residence then occupied by the mother and the father, he had discovered items that had been stolen from the vehicles and a quantity of suspected methamphetamine. In addition, McRae testified that he believed that the father had admitted to altering serial numbers on the firearms he had stolen.

Brandy Steele testified that she works for the Morgan County Circuit Clerk's office as an administrative clerk. She explained that, as part of her employment, she completes sentencing-guideline worksheets on felony defendants. The mother's sentencing-guideline worksheet was admitted into evidence; it indicates that the presumptive disposition of the mother's criminal charge should be “non-prison.”

In their respective briefs on appeal, the mother and the father contend that the juvenile court did not have sufficient evidence to conclude that the children remained dependent. The father contends that, although he will likely face incarceration if he is convicted of the criminal charges he is facing, as of the time of the trial his conduct and condition were such that he was able to properly parent the children. He also argues, as does the mother, that the juvenile court impermissibly based its conclusion that the children were dependent with respect to the mother on speculation that her criminal charges would result in incarceration and on speculation that the mother would relapse if the father were to be sentenced to prison for his pending criminal charges. We agree.

The evidence at trial indicates that the children were removed from the custody of the mother and the father in February 2022 based upon allegations of drug use, neglect, and inadequate supervision. The mother admittedly did not make sustained progress on her sobriety during 2022, and the father was incarcerated from June 2022 to January 2023. When the father was released from incarceration, he began an inpatient substance-abuse-treatment program, which he completed in August 2023. During the period that the father was incarcerated and attending the inpatient substance-abuse-treatment program, the mother established and maintained sobriety, secured and maintained employment, and maintained stable and suitable housing. Thus, contrary to Chasteen's testimony and the juvenile court's finding that “the mother continued to use meth[amphetamine] until shortly before the father was released from jail (and after his time at [the inpatient substance-abuse-treatment program]),” the mother had been sober for a period of eight months when she and the father were living apart due to his participation in the inpatient substance-abuse-treatment program, which began after he was released from incarceration. Because the evidence does not support them, we reject that particular factual finding and the juvenile court's further findings that the father completed the inpatient substance-abuse-treatment program in January 2023 (as opposed to August 2023) and that “we really have no extensive recent history of [the mother's] being drug free when she was not with the father.”⁷

We have before explained that a court must have evidence indicating a likelihood of relapse into continued or further illegal-drug or alcohol usage before using the possibility of a potential relapse as a basis for terminating a parent's parental rights. See E.A.D. v. Randolph Cnty. Dep't of Hum. Res., 369 So. 3d 1069, 1077 (Ala. Civ. App. 2022); and M.G. v. Etowah Cnty. Dep't of Hum. Res., 26 So. 3d 436, 442 (Ala. Civ. App. 2009) (plurality opinion). As we stated in A.A. v. Jefferson County Department of Human Resources, 278 So. 3d 1247, 1253 (Ala. Civ. App. 2018) (quoting M.G., 26 So. 3d at 443), without

“affirmative evidence indicating that the mother was using drugs at the time of the trial, the juvenile court could not have been clearly convinced 'that relapse was so likely or imminent that the mother should have been considered as having a current drug problem that interfered with her ability to properly care for the child[ren].’ ”

We see no reason for treating a dependency action any differently. In a termination-of-parental-rights action, a juvenile court must base its judgment on the current conditions of the parent. B.L. v. Elmore Cnty. Dep't of Hum. Res., 324 So. 3d 829, 838 (Ala. Civ. App. 2020) (quoting S.U. v. Madison Cnty. Dep't of Hum. Res., 91 So. 3d 716, 720 (Ala. Civ. App. 2012)) (“ ‘Because [Ala. Code 1975, § 12-15-319,] is phrased in present and future terms, a juvenile court may terminate a parent's parental rights only if clear and convincing evidence shows that the parent is currently unable to discharge his or her parental duties properly ․ and that the conduct or condition that prevents the parent from assuming or exercising proper care will likely persist in the foreseeable future.’ ”). Similarly, in a dependency action, a juvenile court must determine that a child is dependent based on the conduct or condition of his or her parent at the time of any custodial disposition. C.S. v. Morgan Cnty. Dep't of Hum. Res., [Ms. CL-2022-1246, Jan. 31, 2024] ––– So. 3d ––––, –––– (Ala. Civ. App. 2024) (“The determination of whether a child remains dependent must be based on current circumstances.”); S.S. v. R.D., 258 So. 3d 340, 345 (Ala. Civ. App. 2018). Therefore, before a child can be found to be dependent based on a parent's “potential relapse” into the use of illegal drugs or alcohol, the evidence must clearly and convincingly support a conclusion that, based on the parent's current conditions, relapse is “likely” or “imminent.”

In the present cases, such evidence is lacking. Although the mother had suffered from a previous drug addiction, and although she had relapsed into the use of methamphetamine nine years after successfully overcoming her earlier opioid addiction, the record lacks evidence indicating the reasons for the mother's 2021 relapse after such a sustained period of sobriety. The mother herself admitted that she had attempted to achieve sobriety after the children were initially removed from her custody in 2022 but that she had “relapsed” at the time that the children were placed into foster care. However, she further testified that she had been able to overcome “the little triggers that this case used to do with me,” and the testimony of both Christenson and Moore was that the mother had learned and utilized appropriate coping skills, had developed a relapse-prevention plan, and that relapse, although always a possibility for a recovering addict, was, in their opinion, not likely.

Moreover, as we have previously explained, the evidence does not support the juvenile court's factual finding that the mother had attained or maintained sobriety only after the father had returned to the home. Instead, the evidence indicates that the mother had become sober either in December 2022 or January 2023, which is indeed a date that coincides with the father's release from incarceration, and that she had continued to maintain that sobriety while maintaining a suitable residence and employment during the eight-month period between January 2023 and August 2023, when the father was completing an inpatient substance-abuse-treatment program. In fact, the mother and the father had made progress in their sobriety to the point that, in August 2023, DHR had developed and instituted a reunification plan. We agree with the mother and the father that the record does not contain sufficient evidence from which the juvenile court could have been clearly convinced that the mother, who had been sober and gainfully employed for over a year at the time of the February 2024 trial, would likely relapse into drug use if the father were to be incarcerated at some undetermined time in the future.

Similarly, the evidence indicates that the father had successfully completed an inpatient substance-abuse-treatment program and had secured employment. Both Christenson and Moore indicated that the father had acquired appropriate coping skills, which they also testified they had witnessed him utilize, and that he had developed an appropriate relapse-prevention plan. Although both Christenson and Moore indicated that the father's use of alcohol was troubling, neither indicated that the father's use of alcohol negated the father's progress. Moore specifically testified that the father's failure to discuss with her his use of alcohol was not significantly troubling because, she said, he had several persons in his support network to whom he could have turned for assistance. The father admitted that he should not have consumed alcohol, but he testified that he had not become intoxicated or impaired either time that he had done so.

Thus, the evidence regarding both the mother and the father is that both were free from drug addiction, had appropriate housing, and were gainfully employed at the time of the trial. Based on the evidence presented at the trial, the issues that had resulted in placement of the children into DHR's care had been resolved. In fact, DHR had acknowledged that fact by attempting reunification of the family between August 2023 and November 2023. Despite the facts that the mother likely faces probation and that the father may later face incarceration if convicted for the criminal charges that arose during the period surrounding the removal of the children from their home, that evidence does not change the fact that the current conditions of the mother and the father were such that they could parent the children. The evidence does not support a conclusion that the children remained dependent as a result of the current conduct or condition of the mother and the father.

In its brief, DHR argues that the children's behavioral issues, which increased in August 2023 when increased visitations with the mother and the father began as part of the reunification plan, are a basis for concluding that the children were dependent because, it states, that evidence demonstrates that the increased contact with the mother and the father was “negatively impacting [the children's] emotional well-being.” However, although there is ample evidence indicating that the children suffered some mild behavioral issues during the period that DHR began the process of reunification, other evidence indicated that the children were happy to see and to visit with the mother and the father, that they loved and had a bond with the mother and the father, and that visitations were appropriate, typical, and normal. The foster mother and Eddleman testified that the children, who were three years old at the time of the trial, were not always able to effectively communicate their feelings. Other than some vague testimony indicating that the mother and the father may have discussed impending reunification with the children despite having been asked not to do so in one or more ISP meetings between August 2023 and November 2023, the record lacks testimony indicating that exposure to the mother and the father or their actions during visitations, as opposed to the confusion caused by the attempt at reunification itself, caused the children's behavior to change. Thus, the record does not contain sufficient evidence for the juvenile court to have been clearly convinced that the children's increased exposure to the mother and father as part of the reunification plan rendered the children dependent.

Because we have concluded that the evidence presented to the juvenile court is not sufficient for the juvenile court to have concluded that the children remained dependent at the time the February 2024 judgments disposing of their custody were entered, we reverse the judgments of the juvenile court and remand the cases for the entry of judgments dismissing the dependency actions in compliance with Ala. Code 1975, § 12-15-310(b).⁸

CL-2024-0190 -- REVERSED AND REMANDED WITH INSTRUCTIONS.

CL-2024-0191 -- REVERSED AND REMANDED WITH INSTRUCTIONS.

CL-2024-0192 -- REVERSED AND REMANDED WITH INSTRUCTIONS.

CL-2024-0193 -- REVERSED AND REMANDED WITH INSTRUCTIONS.

FOOTNOTES

1.   The father's appeal from the judgment entered in case number JU-22-638.01 was assigned appeal number CL-2024-0190, and his appeal from the judgment entered in case number JU-22-640.01 was assigned appeal number CL-2024-0191. The mother's appeal from the judgment entered in case number JU-22-638.01 was assigned appeal number CL-2024-0192, and her appeal from the judgment entered in case number JU-22-640.01 was assigned appeal number CL-2024-0193.

2.   We note that the children had not been in the care of the mother and the father since February 2022 and that the children had been briefly placed in a different foster home in July 2022, so any deprivation of food would not have occurred because of the actions of the mother or the father.

3.   Again, we point out that the children had been removed from the custody of the mother and the father in February 2022 and placed with the maternal great-grandmother, that the maternal great-grandmother had relinquished their custody in July 2022, and that the children had lived for a very short time with a different foster family before being placed with the foster parents. That the children craved security is not surprising.

4.   The foster mother did not explain what she meant by use of the term “chronic.” We do not know whether the children had suffered numerous ear infections only while in her home beginning in August 2023 or whether the children had suffered ear infections even before their placement in foster care.

5.   The record does not reflect that visitations were ever suspended, but the exact extent of visitation before August 2023 is not entirely clear in the record.

6.   We note that visitation had been decreased to once per week three months before the trial, or in November 2023.

7.   Notably, the juvenile court also found that the mother and the father, although not married, had had a long-lasting relationship. No evidence at the trial indicated that the mother and the father had considered terminating their relationship, so we presume the juvenile court meant “when she was not [living in the same home] with the father.”

8.   Because we are reversing the juvenile court's judgments based on the lack of evidence to support its dependency findings, we pretermit the argument made by the father that the juvenile court erred by failing to grant the motions to stay the proceedings filed by the mother and the father. H.A.S. v. S.F., 298 So. 3d 1092, 1107 (Ala. Civ. App. 2019) (pretermitting consideration of additional arguments on appeal when one argument is dispositive of the appeal). We note, however, that that issue was not waived by any failure of the mother and the father to “object” to the denial of their motion or by their failure to file a petition for the writ of mandamus regarding that ruling and was therefore properly before this court in these appeals. See R.M. v. Elmore Cnty. Dep't of Hum. Res., 75 So. 3d 1195, 1205 (Ala. Civ. App. 2011).

EDWARDS, Judge.

Hanson and Fridy, JJ., concur. Moore, P.J., concurs in the result, without opinion. Lewis, J., dissents, without opinion.