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B.N.D. v. BARBOUR COUNTY DEPARTMENT OF HUMAN RESOURCES
B.N.D. (“the mother”) appeals from a judgment entered on August 26, 2021, by the Barbour Juvenile Court (“the juvenile court”) finding J.B. (“the child”), who was born on January 26, 2015, dependent. We dismiss the mother's appeal in part and affirm the juvenile court's judgment.
On September 9, 2020, the Barbour County Department of Human Resources (“DHR”) filed a complaint in the juvenile court, alleging that the child was dependent. DHR asserted that, on September 6, 2020, it had received a report that the child's stepfather, P.D. (“the stepfather”), had sexually abused the child and that the child had been removed from the home in which he had lived with the mother and the stepfather and had been placed in DHR's custody. Also on September 9, 2020, DHR filed a motion for a 72-hour hearing. See § 12-15-308, Ala. Code 1975. A virtual 72-hour hearing was conducted on September 10, 2020, and a guardian ad litem was appointed to represent the child and to advocate for the child's best interests. On September 30, 2020, the juvenile court entered orders directing that the child would remain in the temporary custody of DHR and that, following an approved home study conducted by DHR, the child would be placed with his paternal grandmother, T.B. (“the paternal grandmother”), and his paternal grandfather, F.B. (“the paternal grandfather”).
On January 14, 2021, the mother's attorney filed a notice of appearance as retained counsel for the mother. On April 12, 2021, the mother filed a motion to set a hearing to determine whether the child was dependent; she asserted, among other things, that the juvenile court had failed to advise her of her right to legal counsel at the 72-hour hearing on September 10, 2020. A dependency hearing was conducted on June 1, 2021, and, on June 21, 2021, the juvenile court entered a judgment that included the following findings:
“Upon consideration of the testimony and the review of this matter, it is the opinion and finding of this court that based on clear and convincing evidence, competent and material, and relevant in nature, ․ the child is dependent pursuant to § 12-15-102(8), Code of Ala. 1975, and that placement of the child[ ] in the home and care of [the mother] would be contrary to the welfare of the child, based on the following facts: that the child was sexually abused by [the stepfather] on several occasions; the mother was made aware of the sexual abuse, however she did not take appropriate actions to protect [the child] from further sexual abuse. After being put on notice of her child being sexually abused, the mother left her child with [the stepfather] on or about September 4, 2020, when the child's uncle, [E.S.], was an eyewitness to the child being raped by [the stepfather].
“The court further finds that based on the foregoing, ․ [the mother] has poor insight and judgment. Further, she admitted to having knowledge of the sexual abuse and did not take reasonable efforts to protect her child from the perpetrator, she did not report the sexual abuse and did not seek medical attention or psychological counseling for [the child]. Reasonable efforts were made by [DHR] to eliminate the need for removal of the child from his home, based on the testimony from [DHR] and from the witnesses present.”
The juvenile court ordered that DHR would continue to exercise temporary custody of the child, that the child would continue to be placed in the care of the paternal grandparents, and that the mother would have supervised visitation with the child. The juvenile court entered an amended judgment on June 30, 2021, that contained the same findings and directed that DHR would continue to provide supervision for the child for 30 days, after which the case would be closed.
The mother filed a motion to alter, amend, or vacate the judgment on July 2, 2021. On July 12, 2021, the juvenile court entered an order granting, in part, the mother's motion, vacating that portion of its amended judgment that addressed the disposition of the child's custody and setting the matter for a dispositional hearing on August 10, 2021. Following the dispositional hearing, the juvenile court entered a final judgment on August 26, 2021, in which it reiterated the findings of fact it had made in its June 30, 2021, amended judgment, including that finding that the child was dependent, awarded sole legal and sole physical custody of the child to the paternal grandparents, and awarded the mother supervised visitation with the child on the second Saturday of each month. On September 9, 2021, the mother filed a motion to alter, amend, or vacate the August 26, 2021, judgment. The mother filed her notice of appeal to this court on September 10, 2021; the appeal was held in abeyance until the entry of the juvenile court's order on September 14, 2021, denying the mother's postjudgment motion. See Rule 4(a)(5), Ala. R. App. P. The mother later filed a motion requesting, among other things, an order directing the court reporter to correct the transcript of the September 10, 2020, 72-hour hearing to the extent that it indicated that the mother had been represented by counsel at that hearing; she also requested that the juvenile court order the court reporter to supplement the transcript of the June 1, 2021, dependency hearing with an updated index. The juvenile court entered an order granting the mother's motion on February 24, 2022.
The undisputed testimony indicates that, on September 4, 2020, the child was left in the care of the stepfather and the mother's brother, E.S., who was 16 years old at the time of the June 1, 2021, dependency hearing, and that E.S. had witnessed the stepfather raping the child on that date. The stepfather was arrested on that same date, September 4, 2020, and DHR received a report of the incident on September 6, 2020. Stephen Ezell and Jennifer Johnson, who are employees of DHR, testified that the child had disclosed, in a forensic interview conducted after the incident, that he had reported to the mother that the stepfather had touched him inappropriately on multiple occasions before being raped by the stepfather. As a result, the child was removed from the mother's home and was ultimately placed in the care of the paternal grandparents.
The mother denied that the child had made multiple reports of abuse to her before the rape; instead, she said, the child had stated to her on only one occasion that the stepfather had “touched his butt.” According to the mother, upon the child's notifying her on that occasion that the stepfather had touched him inappropriately, she had questioned the stepfather, who, she said, had denied the child's allegation but had stated that “his finger could have slipped” when he was drying off the child after a bath. The mother and her father, W.S., testified that the family had decided to closely watch the stepfather after that occasion, that they had not witnessed any signs of abuse, and that the child had not appeared to be scared of the stepfather.
Johnson, the paternal grandmother, and the paternal grandfather each testified that the mother had stated at an individualized-service-plan meeting held by DHR following the incident on September 4, 2020, that the mother had been aware of the stepfather's abuse of the child but that she had not disclosed that abuse because the stepfather had threatened to commit suicide. The mother denied that she had made that statement and testified that she had informed DHR that the stepfather had threatened to shoot her, the child, or himself when she had tried to leave him “numerous” times. She stated that, at the time of the June 1, 2021, dependency hearing, she and the stepfather had been together for six years, that the stepfather has post-traumatic stress disorder, and that he had physically abused her. The mother stated that she had not left the stepfather because she was scared.
According to the mother, she had not reported the child's disclosure regarding the stepfather's abuse because the stepfather had promised he would change and be a better man and she was giving him a second chance. The mother testified that she had not had any contact with the stepfather since his arrest and that she had obtained a divorce from the stepfather. She stated that the child had never told her of any incidents of abuse before he disclosed that the stepfather had touched his butt, that she had believed the child but had questioned the statement because the child did not seem afraid of the stepfather, and that the stepfather had denied the child's accusation and she had believed him when she should not have. She testified that she had been “blinded by love,” that she “didn't want to believe” that the stepfather had committed the abuse, and that she regretted not reporting the child's disclosure to the police. She testified further that she had done the best she could with the knowledge she had had at the time.
Johnson testified that the mother had confirmed in a letter to DHR that she had known something inappropriate had occurred between the stepfather and the child leading up to the rape. According to Johnson, the mother had stated that she had believed the child was fabricating the accusations. Johnson testified that DHR had referred the mother to Chovan Counseling. The mother testified that she had attended counseling and that her counselor had advised her to distract the child from discussing the stepfather and had been teaching her to recognize signs of sexual assault.
The mother and the paternal grandparents appeared to agree that their relationship had been positive until the child was born, at which time they began to disagree on certain aspects of the mother's parenting of the child, including her aversion to vaccines and her decision to homeschool the child. The paternal grandmother expressed concerns that the mother did not put the child first and testified that, in the past, the mother had delivered the child to the paternal grandparents wearing ill-fitting or inappropriate clothing. She testified that the child had been behind academically when the paternal grandparents had enrolled him in kindergarten. She stated that the child had returned from visitations with the mother upset and confused, that the child would keep “going on and on about․ missing [the mother],” and that the child has night terrors for a couple of nights following his visits with the mother.
Johnson testified that she also had observed setbacks with the child following his visitations with the mother, including staring off, not answering complete questions, and appearing “off.” According to Johnson, the child was receiving counseling services that had been set up by DHR, and, she said, the child's counselor had expressed that the child needed to remain in a stable and safe environment, which, she said, the paternal grandparents provided for the child, and that disruptions could hinder the progress the child had made in counseling. Johnson stated that the mother had pressured the child not to discuss what the stepfather had done to him.
The child's guardian ad litem testified that the child had stated in his forensic interview that, before the rape, he had informed the mother multiple times that the stepfather had hurt him. The guardian ad litem expressed concerns regarding the fact that the family had been worried enough about the child's initial disclosure to formulate a plan but had not been worried enough to notify the authorities and prevent any further abuse. She stated that the stepfather's statement that his finger might have slipped should have caused concern and should have led to reporting the child's disclosure. She stated that, in her opinion, the child was dependent.
At the August 10, 2021, dispositional hearing, Johnson testified that nothing had changed since the dependency hearing, and she recommended that the child's custody be awarded to the paternal grandparents and that the mother be awarded supervised visitation. (R2. 8). She stated that the mother's visits with the child had been supervised because the child had informed DHR that the mother had been pressuring the child to say that the mother had not known about the abuse and to not speak about the stepfather's actions. Leslie Adams, a DHR supervisor, testified that she had concerns regarding the mother's protective capacity as well as the mother's ability to accept her role in what had happened to the child and the severity of what the child had experienced physically and mentally. Adams stated that the mother's lack of response following the child's initial disclosure to the mother caused her to be concerned that there remained a risk to the child.
Melissa Chovan, the mother's counselor, testified that the mother had initiated counseling on September 23, 2020, and that the mother had had approximately 19 counseling sessions. Chovan stated that the mother had done “very good in the beginning” and was making progress. She testified that she did not think that most average people would have acted on the child's initial disclosure to the mother or that they would have comprehended it as sexual abuse. Chovan stated that the mother had expressed remorse for not having recognized the abuse and not having acted at that time. According to Chovan, the mother had attended counseling sessions less as time went on for multiple reasons, including the mother's divorcing the stepfather and losing her insurance, restrictions caused by the COVID-19 pandemic, and the mother's working more and attempting to save money for a home for herself and the child. She stated that the mother has been diagnosed with bipolar disorder and post-traumatic stress disorder. Chovan testified that her work with the mother was not complete and that there was a need for her to continue counseling. She stated, however, that there was nothing that would cause her any concerns about the mother's harming the child or being unable to protect the child.
The mother testified at the dispositional hearing that she wanted to regain custody of the child and that she was willing to continue counseling for herself and the child and to submit to drug screens. She denied that she had pressured the child into saying or not saying certain things but admitted that she had attempted to distract the child from what the stepfather had done. She stated that, at the time of the dispositional hearing, she did not know what to say to the child because, she said, she needed to continue talking to her counselor.
Standard of Review
A judgment adjudicating a child as dependent must be supported by clear and convincing evidence, which is “ ‘ “[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.” ’ ” C.O. v. Jefferson Cnty. Dep't of Hum. Res., 206 So. 3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1975, § 6-11-20(b)(4)).
“ ‘[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ․ establish the fact sought to be proved.’
“KGS Steel[, Inc. v. McInish,] 47 So. 3d  at 761 [(Ala. Civ. App. 2006)].
“․ [F]or trial courts ruling ․ in civil cases to which a clear-and-convincing-evidence standard of proof applies, ‘the judge must view the evidence presented 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)]; thus, the appellate court must also look through a prism 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.’ ”
Ex parte McInish, 47 So. 3d 767, 778 (Ala. 2008). This 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. See Ex parte T.V., 971 So. 2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id. We review the legal conclusions drawn from the evidence without a presumption of correctness. J.W. v. C.B., 68 So. 3d 878, 879 (Ala. Civ. App. 2011).
The mother first argues on appeal that the juvenile court erred by failing to advise her of her right to counsel at the 72-hour hearing, in violation of § 12-15-308, Ala. Code 1975. Section 12-15-308 provides, among other things, that, when a child alleged to be dependent has been removed from the custody of his or her parent and has not been returned to the parent, a hearing shall be held within 72 hours from the time of removal to determine whether continued shelter care is required; that notice of the 72-hour hearing and the right to counsel shall be given to the parent; and that, at the commencement of the 72-hour hearing, “the juvenile court shall advise the parent ․ of the right to counsel and shall appoint counsel if the juvenile court determines he or she is indigent.” The mother argues that the juvenile court's failure to advise her of her right to counsel caused irreparable harm to her and the child.
In T.J. v. Winston County Department of Human Resources, 233 So. 3d 361, 365 (Ala. Civ. App. 2017), this court considered whether the failure of the Winston Juvenile Court to conduct a hearing within 72 hours of the initial removal of the child at issue in that case from the home of the parents amounted to reversible error. This court concluded that, because the initial order awarding custody of the child at issue to the Winston County Department of Human Resources was no longer in effect because the order had been “ ‘supplanted by later orders in which the juvenile court expressly found the child to be dependent [and thereafter by the judgment terminating the parents’ parental rights],’ ” there was no relief that could be ordered by this court to change “ ‘the custody provisions of [the] initial order[ ], and, therefore, the argument pertaining to [that order] is moot.’ ” 233 So. 3d at 365 (quoting M.B. v. R.P., 3 So. 3d 237, 247 (Ala. Civ. App. 2008)). Accordingly, this court dismissed the appeal in T.J. to the extent that it challenged the initial order awarding custody of the child. Id. Similarly, in the present case, like in T.J., the juvenile court's September 30, 2020, order has been supplanted by a later judgment of the juvenile court. Thus, the mother's argument pertaining to the 72-hour hearing order is moot. Accordingly, we dismiss the mother's appeal insofar as it challenges the juvenile court's actions at the 72-hour hearing and the resulting September 30, 2020, order.
The mother next argues on appeal that the juvenile court erred by finding the child dependent at the time of the dispositional hearing on August 10, 2021, despite, she says, a lack of clear and convincing evidence supporting that finding. Section 12-15-102(8), Ala. Code 1975, defines a “dependent child,” in pertinent part, as:
“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 Section 12-15-301[, Ala. Code 1975,] or neglect as defined in Section 12-15-301, or allows the child to be so subjected.
“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.”
The mother argues that she did not know the extent of the abuse by the stepfather against the child and that her response to the child's initial disclosure was reasonable. Although the mother is correct that certain testimony was presented suggesting that the mother could have failed to recognize the child's disclosure as describing sexual abuse by the stepfather, additional evidence was presented from which the juvenile court could have determined that the mother had failed to take appropriate actions to prevent further abuse. Specifically, evidence was presented indicating that the child had disclosed the stepfather's abuse to the mother multiple times before the rape incident, that the mother had admitted being aware of the abuse but had declined to put a stop to the abuse because the stepfather had made threats of suicide, and that the mother had pressured the child not to disclose the stepfather's abuse. The child's guardian ad litem expressed concern regarding the mother's having believed the child's initial disclosure to the point that she had enacted certain safety measures within the home but had failed to report the abuse to authorities, especially after having been informed that the stepfather had stated that his finger might have slipped when he was questioned about the abuse. We conclude that the juvenile court's judgment is supported by clear and convincing evidence regarding the mother's failure to protect the child from further abuse by the stepfather. Accordingly, the juvenile court's finding of dependency is affirmed.
The mother next argues that the juvenile court erred in awarding custody of the child to the paternal grandparents rather than returning the child to the custody of the mother under certain specified conditions, including counseling for herself and the child in addition to receiving other services provided by DHR. The mother cites only Jensen v. Short, 494 So. 2d 90 (Ala. Civ. App. 1986), for the proposition that “[t]he determination of the best interests of the child is an exercise of judicial discretion based upon the evidence and, absent a clear abuse of that discretion, the judgment of the trial court will not be disturbed on appeal.” The mother's brief, p. 53.
Section 12-15-314(a), Ala. Code 1975, provides, in pertinent part:
“If a child is found to be dependent, the juvenile court may make any of the following orders of disposition to protect the welfare of the child:
“(1) Permit the child to remain with the parent, legal guardian, or other legal custodian of the child, subject to conditions and limitations as the juvenile court may prescribe.
“(2) Place the child under protective supervision under the Department of Human Resources.
“(3) Transfer legal custody to any of the following:
“c. A relative or other individual who, after study by the Department of Human Resources, is found by the juvenile court to be qualified to receive and care for the child. Unless the juvenile court finds it not in the best interests of the child, a willing, fit, and able relative shall have priority for placement or custody over a non-relative.
“(4) Make any other order as the juvenile court in its discretion shall deem to be for the welfare and best interests of the child.”
In B.L.T. v. V.T., 12 So. 3d 123, 125 (Ala. Civ. App. 2008), this court stated, in pertinent part:
“The legal standard to be applied in the dispositional phase of a dependency proceeding is the best-interest standard. S.P. v. E.T., 957 So. 2d 1127 (Ala. Civ. App. 2005).
“ ‘In Ex parte Alabama Department of Human Resources, 682 So. 2d 459 (Ala. 1996), the Alabama Supreme Court stated the applicable principles of appellate review in the context of a challenge to a juvenile court's custodial disposition of a dependent child:
“ ‘ “Appellate review is limited in cases where the evidence is presented to the trial court ore tenus. In a child custody case, an appellate court presumes the trial court's findings to be correct and will not reverse without proof of a clear abuse of discretion or plain error. Reuter v. Neese, 586 So. 2d 232 (Ala. Civ. App. 1991); J.S. v. D.S., 586 So. 2d 944 (Ala. Civ. App. 1991). This presumption is especially applicable where the evidence is conflicting. Ex Parte P.G.B., 600 So. 2d 259, 261 (Ala. 1992). An appellate court will not reverse the trial court's judgment based on the trial court's findings of fact unless the findings are so poorly supported by the evidence as to be plainly and palpably wrong. See Ex Parte Walters, 580 So. 2d 1352 (Ala. 1991).”
“ ‘682 So. 2d at 460.’
“J.J. v. J.H.W., 27 So. 3d 519, 522 (Ala. Civ. App. 2008).”
In the present case, the mother does not argue that the paternal grandparents are unfit or are an inappropriate placement for the child. She argues instead that she should have been given the opportunity to receive services provided by DHR with the child in her custody. In light of our holding that the juvenile court could have been clearly convinced of the mother's failure to protect the child and of her poor decision-making leading to the removal of the child from the home, we conclude that the juvenile court could have determined that placement with the mother was not in the child's best interests. Evidence was presented indicating that the child's counselor recommended that the child remain in a stable and safe environment, which, according to the testimony presented, the paternal grandparents were providing for the child. Because evidence was presented that clearly and convincingly supports the juvenile court's placement of the child with the paternal grandparents, we affirm the juvenile court's custodial disposition of the child.
The mother last argues that the juvenile court's order allowing her limited, supervised visitation with the child amounts to an abuse of discretion. She cites former § 12-15-71(a)(4), Ala. Code 1975, and J.P. v. S.S., 989 So. 2d 591 (Ala. Civ. App. 2008), for the proposition that the juvenile court was required to consider the child's best interests in making an award of visitation rights. In J.P., this court observed that, “in the dispositional phase of a dependency proceeding, ․ a subsequent transfer of custody is determined by the ‘best interest of the child’ standard.” 989 So. 2d at 600. Section 12-15-314(f)(9), Ala. Code 1975, provides that “[t]he juvenile court may order visitation between a parent, legal guardian, or legal custodian and the child to maintain or rebuild a parent-child relationship if the visitation is in the best interests of the child.”
In Ex parte C.L., [Ms. 2210092, Jan. 28, 2022] ––– So. 3d ––––, –––– (Ala. Civ. App. 2022), this court stated, in pertinent part:
“It is well settled that a trier of fact has broad discretion to determine a parent's right to visitation with a dependent child and that the best interests and welfare of the child is the primary consideration in determining whether to award visitation and, if so, the extent of that visitation. Minchew v. Mobile Cnty. Dep't of Hum. Res., 504 So. 2d 310, 311 (Ala. Civ. App. 1987). See also Y.N. v. Jefferson Cnty. Dep't of Hum. Res., 67 So. 3d  at 82 [(Ala. Civ. App. 2011)].”
In the present case, evidence was presented indicating that the child's counselor recommended stability for the child. The paternal grandmother testified that the child experienced night terrors following visitations with the mother and that it took a couple of days after the visitations for that issue to resolve. Johnson also testified that she had witnessed the child experiencing behavioral issues following visitations with the mother. The juvenile court could have determined from the evidence presented that limited visitation with the mother was required to promote the child's stability and that additional visitation would not have been in the child's best interests at the time of the entry of the judgment. Accordingly, the juvenile court's award of supervised visitation to the mother is affirmed.
We dismiss the mother's appeal with regard to her argument stemming from the order entered following the 72-hour hearing. We affirm the juvenile court's August 26, 2021, judgment finding the child dependent, awarding custody of the child to the paternal grandparents, and awarding supervised visitation to the mother.1
APPEAL DISMISSED IN PART; AFFIRMED.
1. The mother argues in her reply brief on appeal that the juvenile court erred in denying a Rule 60(b), Ala. R. Civ. P., motion that she filed in the juvenile court on December 3, 2021. We note, however, that the mother failed to obtain leave of this court before filing the motion, as required by Rule 60(b); thus, the juvenile court lacked the jurisdiction to entertain the motion. See Glenn v. Glenn, 740 So. 2d 417, 421 (Ala. Civ. App. 1999). Moreover, “[i]t is well settled that an appellate court will not consider arguments raised for the first time in a reply brief.” Archer v. America's First Federal Credit Union, 290 So. 3d 829, 832 (Ala. Civ. App. 2019). Accordingly, we decline to consider the mother's arguments regarding her Rule 60(b) motion.
Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.
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Docket No: 2200998
Decided: August 05, 2022
Court: Court of Civil Appeals of Alabama.
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