T.H. and C.H. v. Jefferson County Department of Human Resources

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REL: 09/24/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e Reporter of D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ( ( 3 3 4 ) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS SPECIAL TERM, 2010 2090264 T.H. and C.H. v. J e f f e r s o n County Department o f Human Resources Appeal from J e f f e r s o n J u v e n i l e (JU-08-50009) MOORE, Judge. T.H. a ("the f a t h e r " ) judgment child, Court a n d C.H. ( " t h e m o t h e r " ) a p p e a l of the Jefferson G.H. ( " t h e c h i l d " ) , Juvenile Court t o be dependent. finding from their We r e v e r s e a n d remand w i t h i n s t r u c t i o n s f o r t h e j u v e n i l e c o u r t t o d i s m i s s t h e action. 2090264 I. On Procedural January 3, 2 0 0 8 , Human Resources ("DHR") child was dependent the Jefferson filed because petition younger alleging sister. the child Department o f reportedly that the had been T h a t same d a t e , DHR a l s o t h e dependency In that County a petition alleging s e x u a l l y abused by the f a t h e r . a History M.H., the child's p e t i t i o n , DHR a l l e g e d that, due t o the allegations that and t h e r e f u s a l o f the f a t h e r t o agree t o r e f r a i n from with M.H., M.H. the father of was " a t r i s k Because t h e c h i l d the home ("the juvenile court, See court"), conducted Ala. hearing, children, Code of sexual acting § County awarded supervised Family DHR 1 from Court as a j u v e n i l e on J a n u a r y 12-15-60(a). court t h e mother hearing contact been removed i n i t s capacity a shelter-care the juvenile abused t h e c h i l d abuse." had already the Jefferson 1975, former awarded had sexually a n d M.H. of the parents, filed 3, 2008. Following that custody visitation of both with the By A c t No. 2 0 0 8 - 2 7 7 , A l a . Acts 2008, t h e Alabama L e g i s l a t u r e , among o t h e r t h i n g s , a m e n d e d a n d r e n u m b e r e d t h e statutes governing juvenile proceedings, previously c o d i f i e d a t A l a . Code 1 9 7 5 , § 12-15-1 e t s e q . , a n d e n a c t e d t h e A l a b a m a J u v e n i l e J u s t i c e A c t ( " A J J A " ) , c o d i f i e d a t A l a . Code 1 9 7 5 , § 1 2 - 1 5 - 1 0 1 e t s e q . T h e e f f e c t i v e d a t e o f t h e A J J A i s J a n u a r y 1, 2 0 0 9 . B e c a u s e DHR's p e t i t i o n w a s f i l e d b e f o r e t h e e f f e c t i v e date o f t h e AJJA, t h e A J J A does n o t a p p l y t o t h i s case. 1 2 2090264 c h i l d r e n , p r o h i b i t e d any c o n t a c t between t h e c h i l d r e n and t h e father, ordered M.H. t o be group, and continued advocacy January interviewed the by a local shelter-care hearing disclose by any i n a p p r o p r i a t e s e x u a l b e h a v i o r the father. hearing, mother, and awarded overnight the the father custody and On F e b r u a r y parents allow and the father in August committed against 2008, custody supervised shelter-care o f M.H. visitation modified of orders following a status i t searlier visitation later, to the conference, o f M.H. to order to the child, over the course who held a of s e v e r a l days hearing n e i t h e r o f which had ever been 3, or stay DHR. the j u v e n i l e court On N o v e m b e r M.H., maintained visitation with to the with i n regard u n r e s t r i c t e d custody supervised and a h a l f 2009, The j u v e n i l e c o u r t visitation returned dependency p e t i t i o n s , amended. returned 11, 2008, remained i n the custody A year 11, d i dnot t h e mother not t o a l l o w t h e f a t h e r t o l i v e juvenile court both the January i n t h e home w i t h M.H. prior child. At the j u v e n i l e court ordered its to 11, 2008. The r e c o r d i n d i c a t e s t h a t , i n h e r i n t e r v i e w , M.H. her child- 2009, 3 the juvenile court on both formally entered a 2090264 s i n g l e judgment i n which in regard the t o M.H. child, fact. the without Pursuant child parents, the who setting were and filed specific DHR motion notice oral on of appeal supervised-visitation ordered to submit to of custody of postjudgment On as November motion rights 1, 2009. seeking D e c e m b e r 14, The 2009. parents This 2009, to the have the court denied filed their court conducted argument r e g a r d i n g the i s s u e s r a i s e d i n the b r i e f parents on J u n e 29, appeal, impliedly the parents argue the by court found that DHR had dependency p e t i t i o n not commit court filed contend d i d not juvenile a g a i n s t t h e c h i l d as a l l e g e d i n t h e d e p e n d e n c y p e t i t i o n parents father that abuse The t h a t the Issues sexual DHR. found the of 2010. II. On the recommended 17, set a s i d e ; the j u v e n i l e December of a psychological other treatment psychologist. on to maintained c o u n s e l i n g and a as findings any each petition dependency p e t i t i o n forth j u d g m e n t as t o t h e c h i l d that the t h a t judgment, to examining parents granted s u b j e c t to the examination by but i t d i s m i s s e d the dependency that, because the j u v e n i l e proven concerning the 4 the allegations child, in the j u v e n i l e i t s court 2090264 had an i m p e r a t i v e action and return Alternatively, not contain dependency, s t a t u t o r y duty the parents sufficient noted specific child the the t h e dependency child to them. argue t h a t , because t h e r e c o r d does should to support have been a finding of dismissed. The S e x u a l - A b u s e A l l e g a t i o n s above, the juvenile findings of fact court regarding dependent. The p a r e n t s j u v e n i l e court dismissed M.H., had of evidence the petition III. As custody to dismiss the j u v e n i l e court d i d n o t make the basis f o rfinding the argue, however, t h e dependency obviously not s e x u a l l y abused t h e c h i l d . any that, because petition concluded as t o that the father The p a r e n t s point out that DHR a l l e g e d , a n d a t t e m p t e d t o p r o v e a t t r i a l , o n l y one g r o u n d for the father t h e dependency committed sexual p l a c e d M.H. parents, abuse namely, of the child a t r i s k f o r s e x u a l abuse. the finding to a r e j e c t i o n "'[I]n o f M.H., t h a t M.H. that and t h a t such absence appellate courts w i l l findings necessary was n o t d e p e n d e n t m u s t of specific findings assume t h a t t h e t r i a l to conduct Hence, a c c o r d i n g t o t h e o f t h e a l l e g a t i o n s o f s e x u a l abuse. the support 5 had We agree. of fact, c o u r t made i t s judgment, equate unless those such 2090264 f i n d i n g s w o u l d b e c l e a r l y e r r o n e o u s . B . L . T . v . V . T . , 12 S o . 3 d 1 2 3 , 127 ( A l a . C i v . A p p . 2 0 0 8 ) 676 So. 2 d 1 3 2 2 , 1324 would support to ( q u o t i n g Ex p a r t e ( A l a . 1996)). The o n l y Bryowsky, finding that a judgment d i s m i s s i n g t h e dependency p e t i t i o n as M.H. w o u l d b e a f i n d i n g t h a t M.H. w a s n o t a t r i s k o f s e x u a l abuse by h e r f a t h e r . M o r e o v e r , we n o t e t h a t , i f t h e j u v e n i l e c o u r t h a d i n d e e d f o u n d t h a t t h e f a t h e r w a s a d a n g e r t o M.H. prior acts of sexual court certainly would u n r e s t r i c t e d custody after her removal full trial juvenile Mobile against n o t have the child, placed M.H. the juvenile back into the o f h e r p a r e n t s , e s p e c i a l l y o n l y one month from had even court abuse due t o t h e a l l e g e d the parents' been knows home conducted. and f o l l o w s We and long must the law. before presume See a the J.F.S. v. C o u n t y D e p ' t o f Human R e s . , 38 S o . 3 d 7 5 , 78 ( A l a . C i v . App. 2009). A c h i l d i s c e r t a i n l y dependent and i n need o ft h e care and s u p e r v i s i o n of the State i f h i s o r h e r f a t h e r has committed s e x u a l abuse a g a i n s t a s i b l i n g , which t h e mother has failed t o prevent, d i d n o t commit sexual abuse 1975, even against i f the father the child former § 12-15-1(10)j. i n question. such See A l a . Code ( d e f i n i n g a "dependent c h i l d " as 6 2090264 one who i s i n n e e d o f c a r e a n d s u p e r v i s i o n b e c a u s e he o r s h e " i s p h y s i c a l l y , mentally, o r e m o t i o n a l l y abused by t h e c h i l d ' s parents, guardian, o r o t h e r c u s t o d i a n o r who i s w i t h o u t p a r e n t a l care and c o n t r o l necessary because of guardian, the faults or habits Human the child's parents, R e s . , 937 t h e m " ) ; P.H. v . M a d i s o n C o u n t y So. 2d 525 termination-of-parental-rights evidence things, of well-being or other custodian or t h e i r neglect or refusal, a b l e t o do s o , t o p r o v i d e of f o rt h e c h i l d ' s proper proved child was Dep't ( A l a . C i v . A p p . 2006) ( i n case, dependent clear and because, convincing among other f a t h e r had a s s a u l t e d and s e x u a l l y abused c h i l d ' s brothers); a n d M.G. v. State when Dep't of Human half R e s . , [Ms. 2080971, January 8, 2 0 1 0 ] _ _ _ S o . 3 d _ _ _ ( A l a . C i v . A p p . 2 0 1 0 ) (juvenile properly court found dependency of children i n t e r m i n a t i o n - o f - p a r e n t a l - r i g h t s c a s e b a s e d on m o t h e r ' s repeated failure maternal uncle). to protect A child children sexual s u b j e c t e d t o a s e r i o u s r i s k o f s e x u a l abuse by a p a r e n t should occur. because by she i s parent i s dependent abuse or n e v e r be r e t u r n e d who from t o the u n r e s t r i c t e d custody and t h e parent who n e g l e c t f u l l y allowed he of the abusive such abuse t o S e e Odom v . S t a t e D e p ' t o f Human R e s . , 5 6 2 S o . 2 d 5 2 2 , 7 2090264 523-24 (Ala. C i v . App. judgment denying custody other things, the mother's p e t i t i o n that with sexually abusing violated parents the her children). t h e law by i f i t was To determine abuse conclude court's f o r the return of the convinced that that who M.H. filed by abused a convicted been continue of t o the custody of the DHR. the juvenile to had to of the allegations contained i n court had occurred, the j u v e n i l e court daughter intended among The j u v e n i l e c o u r t w o u l d h a v e returning a l l e g e d b y DHR eight-year-old sexually mother h e r husband, dependency p e t i t i o n s sexual (affirming the t r i a l o f h e r c h i l d r e n when t h e e v i d e n c e d e m o n s t r a t e d , relationship the 1990) we would intentionally t h e home the daughter's found of a the have t o returned father nine-year-old that who sister. 2 an had We We n o t e t h a t i n t h e C o m m u n i t y N o t i f i c a t i o n A c t , A l a . C o d e 1975, § 15-20-20 e t s e q . , t h e l e g i s l a t u r e h a s d e c l a r e d t h a t a parent c l a s s i f i e d a s a n a d u l t c r i m i n a l s e x o f f e n d e r may n o t e s t a b l i s h a r e s i d e n c e o r other l i v i n g accommodation w i t h h i s or h e r minor c h i l d i f t h e parent i s c o n v i c t e d o f any c r i m i n a l s e x u a l o f f e n s e i n which any o f t h e parent's minor c h i l d r e n were t h e v i c t i m , i f t h e p a r e n t has been c o n v i c t e d o f any c r i m i n a l s e x o f f e n s e i n w h i c h a m i n o r was t h e v i c t i m a n d t h e minor r e s i d e d or l i v e d w i t h the parent a t the time of the o f f e n s e , o r i f t h e parent has been c o n v i c t e d o f any c r i m i n a l sexual offense i n v o l v i n g a c h i l d , r e g a r d l e s s of whether the p a r e n t was r e l a t e d t o o r s h a r e d a r e s i d e n c e w i t h t h e c h i l d victim. A l a . Code 1975, § 1 5 - 2 0 - 2 6 ( c ) ( 2 ) - ( 4 ) . Although 2 8 2090264 refuse that to indulge the any juvenile immoral error. Persons, construction court See committed generally 250 Ala. 40, 46, construction will be adopted rather only than destroy reasonable alleged A sexual finding against shows July who the unit, was the of be was 1998, a f t e r the procedures only during disorder, legal and Lines, Inc. v. (1947) ("[T]hat 890 will support are the did the decree convinced that judgment not clearly born mother's a grievous 886, commit is the that 15 weeks amniotic 4-month autism, pervasive sexual erroneous. a f t e r a s e r i e s of diagnosed with integration a the occur. father who judgment i n d i c a t i n g Freight R a t h e r , we c h i l d would not child, 2d which abuse d i d not survived birth medical it."). So. the that 14, 32 such Avery construction that of the mental The record prematurely sac ruptured surgeries stay abuse in a and and other neonatal-care retardation, developmental on sensory delays, and t h o s e p r o v i s i o n s do n o t a p p l y t o t h i s c a s e , b e c a u s e t h e f a t h e r was not convicted o f any sexual offense, we believe the l e g i s l a t i v e p o l i c y embodied i n the Community N o t i f i c a t i o n A c t r e i n f o r c e s that j u v e n i l e courts cannot r e t u r n a minor c h i l d to t h e c u s t o d y o f a p a r e n t who h a s b e e n f o u n d t o h a v e s e x u a l l y abused a s i b l i n g of t h a t c h i l d . 9 2090264 disruptive indicates and behavior disorder. Various 3 that those conditions echolalic aggression, and rendered the c h i l d contributed hyperactivity, medical to the defiance, evidence delusional development of and significant Dennis, the child's impulsivity. As n o t e d i n t h e r e c o r d s pediatrician, o f Dr. J u l i e a t some p o i n t the child began "play[ing] herself a l o t down t h e r e " vagina. D u r i n g a p s y c h i a t r i c h o s p i t a l i z a t i o n i n F e b r u a r y 2006, a s t a f f member l a i d and even i n s e r t i n g o b j e c t s with down w i t h the child into her i n the c h i l d ' s bed i n an a t t e m p t t o c o m f o r t t h e c h i l d , p r o v o k i n g a v i o l e n t r e a c t i o n . According which you t o t h e mother, the child my mother asked -- began The inappropriately testified hospital stay had repeatedly Daddy?" remarks. after that the child child later that the c h i l d may during her p s y c h i a t r i s t , "Are to began and i n s e r t i n g objects -- make crude touching i n t o her vagina. have been sexual others The exposed t o a Medical and p s y c h i a t r i c professionals definitively diagnosed the c h i l d with those conditions. The r e c o r d s also i n d i c a t e t h a t t h e c h i l d may a l s o h a v e a t t e n t i o n d e f i c i t a n d hyperactivity disorder, schizophrenia, bipolar disorder, obsessive compulsive disorder, and post-traumatic stress disorder. 3 10 2090264 v i c t i m o f s e x u a l abuse d u r i n g h e r h o s p i t a l i z a t i o n and t h a t she believed that the c h i l d learned from that was repeating victim. "Daddy" psychiatric h o s p i t a l i z a t i o n a t another representative of a that sexual the implicated a as When phrases abuser facility and child behavior repeatedly during facility a i n May originally reported r e m a r k s t o DHR a s i m p l i c a t i n g t h e f a t h e r i n s e x u a l behavior the child hospitalization. referred t o other adolescent when s h e a c t e d continued conducted to learned also men a s " D a d d y . " p s y c h i a t r i s t who advised the referring n o t t h e f a t h e r , as "Daddy," have The p a r e n t s 2004 t o J u l y 2 0 0 7 , Due may 2006, abuse, b u t t h e r e p r e s e n t a t i v e l a t e r r e p o r t e d t h a t t h e c h i l d was t o s t a f f members o f t h e f a c i l i t y , later from testified her that Dr. Edgar F i n n , treated the c h i l d the parents prior the child a c h i l d and from October to redirect the c h i l d out sexually. the child's reference several to unusual "Daddy" sexual as a behavior sexual i n v e s t i g a t i o n s t o determine was s e x u a l l y a b u s i n g the child; 11 and her abuser, DHR i f the father a l l t h e i n v e s t i g a t i o n s ended 2090264 in a finding parents of "not indicated." placed the child s p e c i a l needs o p e r a t e d the supervisors behavior, advice residing behavior. home the child 23, 2007, the f o r persons The p a r e n t s about when with informed the child's to follow sexual Dr. Finn's she e x h i b i t e d s e x u a l l y the next and going continued o u t as w i t n e s s e d home the staff Over July Plus. home the child a t t h e group Elementary, acting by A b i l i t y advised to redirect inappropriate i n a group o f t h e group and they On 4 five to school t o engage and documented months, a t Johnson i n bizarre b y Rhonda while sexual Williamson, Amanda Bowden, Donna Duncan, a n d M e l i s s a N i x , e m p l o y e e s o f t h e school. On December visitation her stay, shopped. alone with 23, 2007, with her parents the family The p a r e n t s the child at their mainly both began her Christmas B i r m i n g h a m home. stayed at home During together or t e s t i f i e d t h a t t h e c h i l d was n e v e r the father during that time. ended on December 28, 2007, a t w h i c h t i m e The c h i l d ' s the father visit returned A "not indicated" finding occurs "[w]hen credible e v i d e n c e a n d p r o f e s s i o n a l judgment does n o t s u b s t a n t i a t e t h a t an a l l e g e d p e r p e t r a t o r i s r e s p o n s i b l e f o r c h i l d abuse o r neglect." A l a . Code 1 9 7 5 , § 2 6 - 1 4 - 8 ( a ) ( 2 ) . 4 12 2090264 the child to the group T h i r t y minutes l a t e r , body check" child's staff buster the child course of suffered slight side child case, from stating up and did to found anal not nor Hardy, 13 of about a immediately for further indicate that was she DHR A v a g i n a l area found no tears practitioner a and or to deposition testimony the results caseworker records d i d not sexual abuse. of assigned s t a t e d i n i t s dependency findings his nurse any t e s t i f i e d t h a t the h o s p i t a l the p h y s i c a l a child interpret the put enema, w h i c h medical d i d i t present had visit i n the but any to They to medications. her area, "Daddy" the c o n s t i p a t i o n the redness call practitioner Latasha of that According Hospital treat a "routine something blood." hospital morning. observed that b e e n g i v e n an effect t h e a l l e g a t i o n s t h a t DHR regarding as the had used i n the at t r i a l , a medical well the performed they indicated Athens-Limestone t h a t she DHR examination. the a redness swelling. testify to treatment examined the as Records said as child in irritated." "Mama g e t t i n g child 10:00 during which "appeared mouth, and examination. from child area i n her around A b i l i t y Plus staff s u p e r v i s o r , the took the the genital "peepee" dust on home the to support petition 2090264 DHR picked Children's However, up M.H. Hospital as the on December 31, for a possible attending 2007, and took her sexual-abuse physician to examination. dictated, "because there was no c r e d i b l e i n d i c a t o r s of an acute sexual assault (no d i s c l o s u r e , no behavior c h a n g e , no p h y s i c a l symptoms) and there were no i n d i c a t o r s o f an e m e r g e n c y m e d i c a l c o n d i t i o n (no physical complaints or symptoms), an emergent g e n i t a l e x a m i n a t i o n was n o t i n d i c a t e d . " The hospital advised verify its forensic M.H. examiners that the following the a she forensic thereafter Prescott House; sexual abuse. sexual any that become at conduct DHR d i s c l o s e any testified had to suspicions. d i d not denied DHR abuse had had "watched original convinced the referred trial, the father] had to interview, father The like a l l e g a t i o n s but father M.H. to i n her occurred. [the sexual-abuse that At interview not done Ph.D., to mother a hawk" that she anything wrong. DHR also the child. as Dr. retained Rebecca Dossett, Dossett s t a t e d i n her J a n u a r y 10, interview 2008, report follows: "This examiner cannot c o n c l u d e i f [the c h i l d ] was o r was not s e x u a l l y m o l e s t e d by h e r father. T h e r e a r e many r e a s o n s t o c a l l t h e a c c u s a t i o n into question. First, [the child] has a history of e x t e n s i v e m a s t u r b a t i o n , which c o u l d account f o r the 14 2090264 i n j u r y t o h e r v a g i n a l a r e a . From t h e comments a b o u t t h i n g s t h a t she had p u t i n t o h e r 'peepee,' i t i s very likely that she masturbates using objects. S e c o n d , due t o h e r A u t i s t i c D i s o r d e r , she i s v e r y e c h o l a l i c . She v e r y e a s i l y c o u l d h a v e h e a r d s o m e o n e s p e a k i n g a b o u t 'peepee i n mouth' and e c h o e d that p h r a s e . T h i r d , t h e f a c t t h a t [ t h e c h i l d ] h a d t o be v e r b a l l y p r o m p t e d t o b r i n g up the t o p i c at a l l creates a question. Fourth, [the child] resists c l o s e p h y s i c a l i n t e r a c t i o n , and i t i s l i k e l y that she w o u l d h a v e p h y s i c a l l y r e s i s t e d any a t t e m p t a t close, t i g h t physical contact. In t h a t case, she w o u l d p r o b a b l y h a v e h a d b r u i s e s o r m a r k s on other p a r t s of her body, where the a c c u s e d w o u l d have had t o h o l d h e r down. F i f t h , t h e u s e o f l a n g u a g e i s one of the core d e f i c i t s i n people w i t h a d i a g n o s i s of a u t i s t i c d i s o r d e r . [The c h i l d ] d o e s n o t u s e l a n g u a g e i n a t y p i c a l way. Therefore, i t i s impossible to d e t e r m i n e w h a t she means when she u s e s l a n g u a g e . I t c a n n o t be a s s u m e d t h a t t h e m e a n i n g o f w o r d s i s t h e same t o h e r a s t h e y a r e t o n o n - a u t i s t i c p e o p l e . "In summary, the evidence that has been p r e s e n t e d as e v i d e n c e o f s e x u a l a b u s e t o [ t h e c h i l d ] c a n a l l be c a l l e d i n t o q u e s t i o n , secondary to her h a v i n g a u t i s t i c d i s o r d e r . Thus e x a m i n e r c a n n o t r u l e i t out, but d e f i n i t e l y cannot confirm the a l l e g a t i o n b a s e d on e v i d e n c e p r e s e n t e d . " However, on March elementary-school Dossett changed d e t a i l e d and 12, 2008, principal her specific opinion e m p l o y e e s , and was actual c h i l d was and to meeting Nix, events, their 15 with the child's school's nurse, that, due statements the to now abuse. believed the child f i r m b e l i e f t h a t the Dossett reporting actual sexual the indicate content of the made t o s c h o o l reporting after child that A l t h o u g h DHR had the relied 2090264 primarily on Dossett's "indicated" the trial DHR finding, d i d not of to sexual Dr. March DHR 2008, d i d not call f u r t h e r e x p l a i n her call any other report Dossett change in issuing as an a witness at in position. expert witness Also, to b o l s t e r i t s case abuse. Finn d i d appear at t r i a l parents. Dr. conditions, Finn the child did not would perceive making those comments. disruptive behavior attention." a s an e x p e r t w i t n e s s various the to t o Dr. child maintained her the import a t t e n t i o n she According Finn due understand d i s o r d e r , the Dr. for that, testified comments b u t by 12, of would get F i n n , as p a r t o f "was that highly the the her from her motivated child's sexual r e m a r k s w e r e "a m a n i f e s t a t i o n o f h e r i m p u l s i v i t y a n d a t t e n t i o n seeking behaviors and things child's accounts of sexual repetition the c h i l d child had something foregoing autism and t h e m s e l v e s by, an another aspect evidence other could child Dr. of her He had the "fantasy," or be said, or something the autism. disorders the that things, aggressive 16 stated that Finn also considered indicates that mental among o t h e r that." acts v i e w e d or dreamed. d e l u s i o n a l as The from of like child have suffers manifested sexual "acting 2090264 out" and that, p o i n t , Dr. the Dossett, alleged apparently As noted that who denied any no juvenile an the f a t h e r and the mother at the parents totally denied For had before i t sufficient the f a t h e r d i d not custody of IV. The at the a that any reasons, evidence to sexual abuse by of testimony, had ever juvenile court sustain a the the demeanor abuse the abuse of Lastly, their sexual The indicating the during reliable father. child. assess 2007. finding child and remaining in that that the parents. The parents Effect of the Sexual-Abuse Findings a r g u e t h a t , b e c a u s e A l a . Code 1975, 12-15-52(c)(1), required specificity "the facts Code former 1975, trial; commit s e x u a l of to one regarding December 28, considered the at unreliable, p h y s i c a l evidence foregoing risk father before opportunity occurred. not least s e x u a l m i s c o n d u c t by the had was at of the c h i l d the s e x u a l l y abused a l l the and, o b v i o u s l y was court M.H. of shared definitive f a t h e r had Finn statements a c o n c l u s i o n DHR contains Dr. misconduct a b o v e , M.H., the to rendered sexual r e p o r t e r , had record according § a petitioner constituting 12-15-65(f), 17 the to set forth dependency" required former proof § with and Ala. of those 2090264 allegations by c l e a r and convincing not c l e a r and convincing provide asserted dismiss § i n a dependency evidence, evidence petition, t h e dependency p e t i t i o n . a when DHR does of the allegations juvenile court must See A l a . Code 1 9 7 5 , f o r m e r 12-15-65. Although to support t h e language their of the operative argument, the parents statutes overlook appears established c a s e l a w t h a t a j u v e n i l e c o u r t may f i n d d e p e n d e n c y b a s e d o n a n y ground proven dependency 1232 at t r i a l , petition. even not contained S e e M.M.S. v . D.W., i n any 735 So. 2 d 1 2 3 0 , ( A l a . C i v . A p p . 1999) ("However, c o n t r a r y t o t h e m o t h e r ' s argument, t h e j u v e n i l e c o u r t upon grounds n o t a s s e r t e d v. a ground State can f i n d a c h i l d i n t h e dependency p e t i t i o n . D e p ' t o f Human R e s o u r c e s , C i v . App. 1987) ( s t a t i n g t h a t t h i s that t h e Department grounds that court 5 0 2 S o . 2 d 7 6 9 , 770 had other amendment proved b e c a u s e we sufficient grounds the children are dependent.')."). under Rule based Martin (Ala. c o u r t d i d n o t need t o ' f i n d [ o f Human R e s o u r c e s ] alleged i n the petitions juvenile dependent We the specific [found] that the f o r determining also note that, 1 7 , A l a . R. J u v . P., a j u v e n i l e c o u r t may a l l o w a n o f an o r i g i n a l dependency p e t i t i o n 18 " a t any time," 2090264 which presumably judgment, by Rule judgment 15(b), after A l a . R. finding evidence at t r i a l not include so as t o c o n f o r m t h e judgment authorized court's would the of to the evidence, C i v . P. dependency entry may Thus, be a alleged in the affirmed dependency i f the to prove that the father committed sexual one petition. A c c o r d i n g l y , we r e j e c t t h e p a r e n t s ' a r g u m e n t t h a t a f a i l u r e DHR as juvenile s u p p o r t s any g r o u n d f o r dependency, even specifically the abuse by should a u t o m a t i c a l l y r e s u l t i n a r e v e r s a l of the judgment f i n d i n g the child dependent. R a t h e r , we child i s dependent c o u l d v a l i d l y dependency proven a t V. Again, judgment the Other Grounds juvenile the basis R.P., any 3 So. dependency ground 3d that 237 court findings the r e s t on any o t h e r g r o u n d f o r f o r Dependency did not of fact forth in i t s of law determination. In a f f i r m the judgment i f the e v i d e n c e f o r dependency. ( A l a . C i v . App. could set or conclusions f o r i t s dependency s u c h c a s e s , t h i s c o u r t may supports that trial. any s p e c i f i c explaining conclude that a f i n d i n g apply i n this 19 See 2008). generally The case were M.B. v. grounds f o r contained in 2090264 Ala. Code 1975, "dependent c h i l d " or former as a § 12-15-1(10), which defined child: " a . Who, f o r a n y r e a s o n i s d e s t i t u t e , h o m e l e s s , d e p e n d e n t on t h e p u b l i c f o r s u p p o r t ; o r "b. Who i s w i t h o u t a p a r e n t o r g u a r d i a n a b l e t o provide f o r the child's support, training, or education; or " c . Whose c u s t o d y i sthe subject of controversy; or " d . Whose home, b y r e a s o n o f n e g l e c t , c r u e l t y , o r d e p r a v i t y on t h e p a r t o f t h e p a r e n t , parents, g u a r d i a n , o r o t h e r p e r s o n i n whose c a r e t h e c h i l d may b e , i s a n u n f i t a n d i m p r o p e r p l a c e f o r the child; or " e . Whose p a r e n t , p a r e n t s , g u a r d i a n , o r o t h e r c u s t o d i a n n e g l e c t s o r r e f u s e s , when a b l e t o do s o o r when s u c h s e r v i c e i s offered without charge, to provide or allow medical, s u r g i c a l , or other care necessary f o r the child's health or well-being; or " f . Who i s i n a c o n d i t i o n o r s u r r o u n d i n g s o r i s under improper or i n s u f f i c i e n t guardianship or control as t o endanger the morals, health, or general welfare of the child; or "g. Who guardianship; has or "h. Whose custodian f a i l s , c h i l d to school i compulsory school " i . Who has parents, guardian, no proper parental care or parent, parents, guardian, or refuses, or neglects t o send the n accordance w i t h t h e terms o f t h e attendance laws o f t h i s s t a t e ; o r been abandoned by t h e or other custodian; or 20 child's a 2090264 " j . Who i s p h y s i c a l l y , m e n t a l l y , o r e m o t i o n a l l y abused by t h e c h i l d ' s p a r e n t s , guardian, o r other c u s t o d i a n o r who i s w i t h o u t p r o p e r p a r e n t a l c a r e a n d c o n t r o l necessary f o rthe c h i l d ' s w e l l - b e i n g because of the f a u l t s or h a b i t s of the c h i l d ' s parents, guardian, or other custodian or t h e i r neglect or r e f u s a l , when a b l e t o do s o , t o p r o v i d e them; o r " k . Whose p a r e n t s , g u a r d i a n , o r o t h e r c u s t o d i a n unable t o discharge t h e i r r e s p o n s i b i l i t i e s t o f o r the child; or are and " l . Who h a s b e e n p l a c e d v i o l a t i o n of the law; or f o r care or adoption i n "m. Who f o r a n y o t h e r c a u s e i s i n n e e d care and p r o t e c t i o n of the s t a t e ; and "n. I n any o f t h e f o r e g o i n g , or s u p e r v i s i o n . " However, and a finding convincing 65(f). Clear of the i s i n need o f care o f d e p e n d e n c y must be b a s e d on evidence. A l a . Code and c o n v i n c i n g evidence 1975, former § clear 12-15- i s " [ e ] v i d e n c e t h a t , when w e i g h e d a g a i n s t e v i d e n c e i n o p p o s i t i o n , w i l l produce i n the mind of the t r i e r of f a c t a f i r m c o n v i c t i o n as t o each e s s e n t i a l e l e m e n t of the c l a i m and a high p r o b a b i l i t y as t o t h e c o r r e c t n e s s o f t h e c o n c l u s i o n . Proof by c l e a r and convincing evidence requires a level of proof greater than a preponderance of the evidence or the s u b s t a n t i a l weight of the evidence, but less than beyond a reasonable doubt." Ala. which Code 1975, § the burden evidence, 6-11-20(b)(4). of proof i t i s n o t enough In dependency requires that 21 clear and the evidence cases, in convincing "raise[s] a 2090264 question" as to dependency So. maintains. the 3d at of the child, as the dissent (Thomas, J . , d i s s e n t i n g ) . "[T]he evidence i s not s u f f i c i e n t to a l l o w a p p e l l a t e a f f i r m a n c e o f a j u d g m e n t b a s e d on [a] f i n d i n g [ t h a t is required to be established by 'clear and convincing' evidence, such as a finding of dependency,] u n l e s s the record contains evidence from which the f a c t - f i n d e r reasonably c o u l d have d e t e r m i n e d t h a t t h e f a c t was p r o v e n by c l e a r and convincing evidence.'" Ex p a r t e M c l n i s h , (Ala. Mclnish, (Ala. 2008) [Ms. Civ. result)). [Ms. 1 0 6 0 6 0 0 , S e p t . 5, (quoting 2040526, App. Thus, with June 2006) approval 30, court KGS 2006] (Murdock, when t h i s 2008] , v. 3d , concurring the 3d Inc. Steel, So. J., faces So. in question the whether s u f f i c i e n t evidence s u s t a i n s a dependency d e t e r m i n a t i o n , this court "must a l s o l o o k t h r o u g h a p r i s m t o d e t e r m i n e w h e t h e r t h e r e was s u b s t a n t i a l e v i d e n c e b e f o r e t h e [ j u v e n i l e ] c o u r t t o s u p p o r t a f a c t u a l f i n d i n g , b a s e d upon the [ j u v e n i l e ] c o u r t ' s weighing of the evidence, that would 'produce i n the mind [of the [ j u v e n i l e ] c o u r t ] a f i r m c o n v i c t i o n as t o e a c h e l e m e n t o f t h e c l a i m and a h i g h p r o b a b i l i t y as t o t h e c o r r e c t n e s s o f t h e conclusion.'" Ex § parte Mclnish, 25-5-81(c)). m i n d , we consider So. With the 3d the appropriate various at ( q u o t i n g A l a . Code standard a r g u m e n t s made b y 22 of DHR, 1975, review and in the 2090264 various reasons affirming the judgment. a. In asserted use DHR [DHR]'s f o s t e r i n g the safe is the dissent, in support of 5 The A l l e g e d F a i l u r e o f t h e P a r e n t s t o A v a i l T h e m s e l v e s o f DHR S e r v i c e s i t s brief, inhibited i n contends ability that to the parents provide "repeatedly services r e u n i f i c a t i o n of the family." r e m o v e d f r o m t h e f a m i l y home, DHR g e n e r a l l y aimed at Once a c h i l d has a duty t o r e a s o n a b l e e f f o r t s t o r e u n i t e t h e f a m i l y as q u i c k l y and as safely as p o s s i b l e . 65(g)(3) R e s 8 6 9 opinion). fostering & See A l a . Code 1975, former (m); a n d J . B . v . J e f f e r s o n So. 2 d 4 7 5 , 481 That duty the safe often (Ala. County Dep't C i v . App. 2003) requires DHR B a l d w i n C o u n t y D e p ' t o f Human R e s . , 12-15- o f Human (plurality to provide r e u n i f i c a t i o n of the family. § services S e e H.H. v. 989 So. 2 d 1094 ( A l a . C i v . One r e a s o n a s s e r t e d b y t h e d i s s e n t i s t h a t t h e j u v e n i l e court "had before i t t h e recommendation o f t h e guardian ad l i t e m , urging the j u v e n i l e court t o f i n d the c h i l d dependent." So. 3 d a t (Thomas, J . , d i s s e n t i n g ) . The d i s s e n t f a i l s to mention t h a t t h e g u a r d i a n ad l i t e m , a t o r a l argument b e f o r e t h i s c o u r t , m a i n t a i n e d t h a t t h e c h i l d was d e p e n d e n t b e c a u s e the guardian ad l i t e m b e l i e v e d t h a t evidence proved t h a t t h e f a t h e r had committed s e x u a l abuse a g a i n s t t h e c h i l d . The recommendation o f t h e g u a r d i a n a d l i t e m , t h e r e f o r e , c a n n o t be c i t e d t o s u p p o r t a f i n d i n g t h a t t h e c h i l d i s d e p e n d e n t o n some other ground. 5 23 2090264 App. 2007) that, (plurality when parents reunification dependent Presumably, services, a DHR contends i t s ability inhibit and w i t h h o l d parents. which, opinion). to provide juvenile court the custody We n e e d n o t a d d r e s s may find of the child a child from the the merits of that contention, we n o t e , i s n o t s u p p o r t e d b y c i t a t i o n t o a n y s t a t u t e o r caselaw, because sufficient DHR we evidence t o support commonly meetings conclude uses t o determine that parents' (ISP) t h e s e r v i c e s needed t o r e h a b i l i t a t e t h e attorneys, and present individualized-service-plan A t those meetings, assigned t o the case, providers, d i d not i t s theory. parents and t o reunite the family. caseworker DHR the other t h e DHR along with the parents, the guardian interested ad litem, parties the invited service by DHR, r o u t i n e l y i d e n t i f y t h e r e a s o n DHR h a s b e c o m e i n v o l v e d w i t h t h e family, t h e g o a l s t o e n d DHR's i n v o l v e m e n t , timetable In t o achieve this s o c i a l worker late case, DHR goals. assigned t h e case to Iris Johnson, a i n i t s c h i l d - a b u s e - a n d - n e g l e c t ("CA/N") u n i t , i n December 2007. worker, those a n d t h e means a n d Johnson t e s t i f i e d she o r d i n a r i l y schedules 24 that, a s a CA/N o n l y one I S P m e e t i n g social after a 2090264 child i s removed from then other units of the custody DHR schedule t a k e p l a c e e v e r y s i x months. case, after performing sexual-abuse meeting. January her allegations, Johnson of h i s or her follow-up meetings to ISP Johnson t e s t i f i e d that, in preliminary investigation she originally attempted scheduled that meeting was canceled. Johnson r e s c h e d u l e d the ISP meeting parents informed attorneys, that and 6 January 30, Johnson to her, they pursuant needed to of the an ISP meeting for schedule the ISP this 2008. On January 22, f o r t h e n e x t day, to seven confirm the January ISP told that be they On the days' advice notice 2008, but of for would not 28, meeting, the but, mother the an able to attend the the day, to the f l u and scheduled J o h n s o n n e v e r t h e l e s s h e l d an I S P m e e t i n g ISP telephoned next Johnson the mother had the their Johnson t h e r e f o r e r e s c h e d u l e d the ISP meeting f a t h e r t e l e p h o n e d and meeting. and 11, 2008, b u t , b e c a u s e t h e f a t h e r ' s a t t o r n e y c o u l d n o t attend, meeting, parents, without ISP the A l a b a m a Admin. Code, R u l e 660-5-47-.04(7) (Alabama Dep't o f Human R e s . ) , r e q u i r e s " [ s ] u f f i c i e n t a d v a n c e n o t i c e " o f a n y ISP meeting. 6 25 2090264 p a r e n t s on meeting. J a n u a r y 30, w h i c h J o h n s o n r e f e r r e d t o as report from the i n d i c a t e s that, i n order the family, and the sexual any threat children a abuse and the ISP child to visit occurred January f o r DHR of needed reasonable goal, had t o no sexual to person physical be and counselor that the 2008, longer abuse would feel harm. a the In with the child. requirements for the child would parents to child to would provide determine ISP to team achieve be or removed i s safe from achieve that funds f o r the real the at abuse" Ability allowed did with environment i f "any remain meeting involved safe order to The ISP be needed provided t e a m a g r e e d t h a t DHR a 30, P l u s g r o u p home, w h e r e t h e p a r e n t s w o u l d be visits "split" 7 The where a not supervised set any identify any T h e d i s s e n t m a i n t a i n s , i n p a r t , t h a t t h e c h i l d c o u l d be found dependent because "[t]he juvenile court ... heard e v i d e n c e t h a t the p a r e n t s had r e f u s e d t o c o o p e r a t e w i t h DHR So. 3 d a t ( T h o m a s , J . , d i s s e n t i n g ) . To s u p p o r t that statement, the dissent cites the foregoing evidence indicating t h a t DHR experienced d i f f i c u l t y in getting the parents to attend the first ISP m e e t i n g . L i k e DHR, the d i s s e n t c i t e s no l e g a l a u t h o r i t y t h a t t h e f a i l u r e o f a p a r e n t t o i m m e d i a t e l y s u b m i t t o an ISP meeting renders a child dependent. 7 26 2090264 services any that goals i n the Johnson 11, M.H. and the parents initial testified 2008, she a Johnson to had not At screaming that the DHR the unsuccessfully for Johnson ISP down have them the mother s i t down appointment mother take the became M.H., sign i t . " said irate as 2007. a that for that and his attorney, who advised at that and, was social the stated time but had that trying to reach parents done testified after able began DHR Johnson stairs Johnson report observe uniformed police officers, M.H. meet February parents to made a n and and o f December 31, mother, ISP the after arrived, not to contact the to a l s o w a n t e d t o " t r y and the two came question complete the some o c c a s i o n the could night father attorney of point, w o r k e r , a c c o m p a n i e d by on on she telephoned that it that, bit i n order report. J o h n s o n , when she meeting. earlier receive scheduled a meeting with little According that ISP Johnson s t a t e d t h a t do needed to not the that she ISP reports let did she to not did finish later. DHR between did not January conducted put 30, regular into 2008, ISP evidence and May meetings 27 5, any 2009. beginning issued Apparently, in April 2008 DHR and 2090264 occurring both every parents that "DHR receiving s i x months attended. thereafter, T h e May i s currently 5, involved a l l of which 2009, one o r ISP r e p o r t with your a r e p o r t on 12-28-07 a l l e g i n g that family states due t o [thechild] had b e e n s e x u a l l y a b u s e d w h i l e a t home w i t h h e r p a r e n t s d u r i n g t h e Christmas order Holidays." f o r DHR parents] That report t o end i t s involvement must p r o v i d e t h e i r abuse t h a t w i l l take t h e i r report required A b i l i t y of appointments meetings full a l l the and children with i n the family, "[the from allegations of sexual into adulthood." The I S P P l u s , a s o f May 5, 2 0 0 9 , t o i n f o r m t h e child's psychiatric and medical a l l i n d i v i d u a l - e d u c a t i o n a l - p l a n ("IEP") regarding the child participation on t o s a y t h a t , c h i l d r e n w i t h a safe, s t a b l e , and nurturing environment that i s free parents goes i n order i n the child's t o assure care the parents' and education. 8 The The d i s s e n t m a i n t a i n s t h a t " t h e p a r e n t s were encouraged to a t t e n d t h e c h i l d ' s p s y c h i a t r i c appointments; however, t h e p a r e n t s o n l y a t t e n d e d one a p p o i n t m e n t . " So. 3d a t (Thomas, J . , d i s s e n t i n g ) . The r e c o r d shows t h a t one o r b o t h parents attended every p s y c h i a t r i c appointment f o r the c h i l d b e f o r e s h e was p l a c e d i n t o t h e A b i l i t y P l u s g r o u p home. T h e r e a f t e r , A b i l i t y P l u s a r r a n g e d f o r t h e c h i l d t o s e e a new psychiatrist. On May 5, 2 0 0 9 , DHR c o n d u c t e d a n I S P m e e t i n g attended by the father. The I S P r e p o r t f r o m t h a t meeting indicates that, f o r the f i r s t t i m e , t h e p a r e n t s w o u l d be n o t i f i e d a week i n a d v a n c e o f a l l t h e c h i l d ' s m e d i c a l a n d 8 28 2090264 ISP report recording listen also of required their the voices reading t o when g o i n g t o b e d . the visitation the ISP The and schedule did not require service providing the of in order to provide for book report for the the an child further parents. parents meet the the to audio to clarified However, receive overarching any goal Latasha case, Hardy, testified a safe environment f r e e of the of abuse. sexual child with to a ISP plan report particular parents the t h a t DHR DHR social ordinarily worker assigned requires threat to the a p a r e n t who has been s e p a r a t e d from a c h i l d for safety psychological a p r e r e q u i s i t e to determining evaluation as reasons to s e r v i c e s needed to r e h a b i l i t a t e the parent. requested a psychological result, according for parents. the to Hardy, evaluation DHR never of submit to H o w e v e r , DHR the the never parents. a d d r e s s e d any A l t h o u g h Hardy t e s t i f i e d g e n e r a l l y a As a services that the psychiatric a p p o i n t m e n t s so that they could attend those a p p o i n t m e n t s u n d e r DHR s u p e r v i s i o n . The r e c o r d i n d i c a t e s t h a t t h e c h i l d h a d o n l y one o t h e r v i s i t w i t h h e r p s y c h i a t r i s t a f t e r t h a t , on A u g u s t 6, 2 0 0 9 , w h i c h t h e p a r e n t s a t t e n d e d t o d i s c u s s t h e i r c o n c e r n s t h a t t h e c h i l d was b e i n g o v e r - m e d i c a t e d . The r e c o r d does n o t s u p p o r t any c o n t e n t i o n t h a t t h e p a r e n t s e v e r missed a p s y c h i a t r i c a p p o i n t m e n t of w h i c h t h e y had been n o t i f i e d and i n v i t e d t o a t t e n d . 29 2090264 parents never availed testified specifically parents did themselves this "repeatedly case, any inhibited argues, evidence. would supervisors. finding [DHR]'s aimed a t f o s t e r i n g t h e safe that ability parents to provide reunification n o t be s u p p o r t e d the 9 o f t h e f a m i l y , " as by c l e a r an I S P m e e t i n g w i t h o r w i t h o u t Johnson experienced the parents and convincing capable theparents; trouble scheduling the i n i t i a l due t o a t t o r n e y had services T h e r e c o r d s h o w s i n d i s p u t a b l y t h a t DHR w a s of conducting illness, Hardy t h a t t h e o n l y time she c o u l d r e c a l l t h e n o t want t o change v i s i t a t i o n with services, r e f u s i n g a s e r v i c e was when t h e m o t h e r h a d s t a t e d s h e In DHR o f DHR's that ISP meeting involvement and t h e mother's b u t s h e was a b l e t o c o m p l e t e h e r I S P m e e t i n g w i t h t h e The d i s s e n t contends, i n p a r t , t h a t a dependency f i n d i n g can be a f f i r m e d on t h e b a s i s o f a v i s i t a t i o n d i s p u t e between the mother and A b i l i t y P l u s , which erupted i n t h e mother's use of harsh language i n f r o n t of t h e c h i l d . So. 3d a t (Thomas, J . , d i s s e n t i n g ) . T h a t d i s p u t e a r o s e o u t o f t h e g r o u p home's d e c i s i o n t o e x c l u d e r e l a t i v e s o f t h e c h i l d from a v i s i t a t i o n t h e c h i l d had w i t h t h e mother i n February o r March 2009. The d i s s e n t does not cite any l e g a l authority i n d i c a t i n g t h a t a c h i l d s h o u l d be c o n s i d e r e d d e p e n d e n t b e c a u s e a p a r e n t becomes f r u s t r a t e d a n d i r a t e f o l l o w i n g a p h y s i c a l custodian's denial of v i s i t a t i o n . F u r t h e r m o r e , o u r supreme court decided l o n g ago t h a t a c h i l d i s n o t i n immoral o r dangerous surroundings w h i l e l i v i n g i n a home w i t h a p a r e n t who u s e s c o a r s e l a n g u a g e . S e e S t r i p l i n v . W a r e , 3 6 A l a . 87 (1860) . 9 30 2090264 parents before parents attended case; to she r e a s s i g n e d every t h a t DHR n e v e r the case; ISP meeting outlined that after any p l a n one requiring both left Johnson or the the parents r e c e i v e any s e r v i c e s designed t o s a f e l y r e u n i t e t h e f a m i l y ; t h a t DHR d i d n o t t a k e e v e n t h e m o s t p r e l i m i n a r y s t e p t o o f f e r rehabilitation that its or reunification the parents statutory d i dnothing duty. parents that to inhibit DHR we Hence, court rested i t s finding assume be The a demonstrated 1 0 ground the juvenile for a even i f finding of we do n o t d e c i d e . Alleged Inability of the Parents t o Needs o f t h e C h i l d a r g u m e n t , DHR c o n t e n d e d an performing o f DHR's s e r v i c e s , legal Meet t h e S p e c i a l oral from o f d e p e n d e n c y on t h e g r o u n d t h a t t h e considered dependency, which child. cannot had not a v a i l e d themselves could At s e r v i c e s t o the parents; and ability t o meet that the parents the special The d i s s e n t a l s o m a i n t a i n s had not needs of the that the parents "lack[] A l t h o u g h DHR d i d n o t make a n y a r g u m e n t o n t h e p o i n t a t t r i a l o r on a p p e a l , t h e d i s s e n t p o i n t s o u t t h a t t h e p a r e n t s d i d n o t p r o v i d e v o l u n t a r y c h i l d s u p p o r t w h i l e t h e c h i l d was i n DHR's c u s t o d y . So. 3d a t (Thomas, J . , d i s s e n t i n g ) . The r e c o r d s h o w s t h a t t h e j u v e n i l e c o u r t r e p e a t e d l y r e s e r v e d the i s s u e o f c h i l d support and never ordered t h e parents t o pay any c h i l d s u p p o r t . The p a r e n t s n e v e r t h e l e s s p r o v i d e d t h e c h i l d f o o d a n d a m i n i m a l amount o f c l o t h i n g . In addition, the 1 0 31 2090264 the a b i l i t y to needs." ... adequately address the So. 3d at (Thomas, parents do not dispute that result of her autism and disorders. At trial, Hardy very "hands-on" affectionate mother. She's testified that autism." has s p e c i a l n e e d s as other her dissenting). child the J., mental testified relationship with with her, very very the B o t h J o h n s o n and that the and the child a t t e n t i v e to her loving parents c h i l d ' s many s p e c i a l with are [the "well Hardy admitted child, good The of the the efforts special needs child. parents have e x c e e d e d any efforts to secure the standard appropriate "very a Johnson child's had services for the thing." of the parents The a She's their f o l l o w i n g e v i d e n c e shows t h a t , i f a n y t h i n g , Johnson understated is needs. appropriate "a has t h a t the parents been v e r y p r o a c t i v e i n r e q u e s t i n g w h i c h H a r d y s t a t e d was mother and of a behavioral child]." aware The evidence Hardy and i n meeting the reveals of good p a r e n t i n g medicinal, that in the their therapeutic, and p a r e n t s were r e s p o n s i b l e f o r a s s u r i n g t h a t the c h i l d r e c e i v e d her f e d e r a l s u p p l e m e n t a l s e c u r i t y income payments and for o b t a i n i n g the M e d i c a i d waiver t h a t funded the c h i l d ' s s t a y at A b i l i t y Plus. The d i s s e n t c i t e s no l e g a l a u t h o r i t y f o r t h e proposition t h a t the nonpayment of a d d i t i o n a l , " v o l u n t a r y " child support under these circumstances renders a child dependent. So. 3 d a t (Thomas, J . , d i s s e n t i n g ) . 32 2090264 educational means afflicting the child. The record to shows child's pervasive that o f age. At that foods o r wear shoes, head Holly could integration various identified would n o t communicate not eat s o l i d except through diagnosed deficit. To the address problems took the c h i l d child t o Dr. exhibited sensory diagnosis, that with and the by the child, p a r e n t s a r r a n g e d f o r t h e c h i l d t o r e c e i v e , on a r e g u l a r speech, occupational, occasional to and recreational Despite physical delays. of Alabama-Birmingham evaluation by Dr. parents Lane the c h i l d On would School Rutledge. i n f o r m e d Dr. R u t l e d g e problems, basis, well as May 1, continued 2002, the t o t h e Department of P e d i a t r i c s a t t h e University S. as intervention, the child developmental parents took the c h i l d therapy, the therapy. the therapeutic experience the a t a b o u t a y e a r t o two the child The p a r e n t s who associated first diseases a n d , when f r u s t r a t e d , w o u l d b a n g h e r her crib. Mussell, challenging the parents point, and gesturing, against the developmental delays years grunting combat that, have 33 of At Medicine that i n addition "meltdowns" point, to her during for the other which the 2090264 c h i l d w o u l d become v e r y up things, felt the and has done an On to that child the with mother the a the child telephone conversation, evaluated of Center, evaluation on at the on level of was 18 very well as for sensory delays. The team recommended t h a t already and medication criteria integration that prescribed appropriate Apparently Civitan 9, a 34 2002. examiners for autistic disorder the and psychiatrist of The of the concluded disorder as developmental parents services the a part because continue the t h e y e m p l o y management by based International October the special-education r e c e i v i n g and Rutledge's the difficult but child and to Dr. Rutledge arranged for and the therapies as family lady." for autism. distress, d i d meet the required Sparks Autism C l i n i c , September dates that telephoned that the young tear Rutledge noted that "[t]he this Dr. would Dr. features" Alabama-Birmingham both high herself. recommendation to evaluate University child's autistic "the A u t i s m C l i n i c " and 2002, aggressive, and 7, t o be Research others "many receive specialist on had very i n c r e d i b l e job May office would hurt child e v a l u a t i o n by u p s e t and to child with was techniques address the 2090264 c h i l d ' s temper t a n t r u m s , i m p u l s e c o n t r o l , and other behavioral problems. In June Mountain Julie 2003, the Pediatrics Dennis. parents for referred H o s p i t a l to address the child the a evaluation the child Children's by receiving Hospital to several care feeding for food textures, skills to Children's noted that family." Based in July therapy identified to task, and The the on 2003, through problems: delayed self- decreased t o l e r a t i o n The child a l s o began r e c e i v i n g speech t h e r a p y through Birmingham Speech and mother Hearing. In characterized child as For those the one frustration, and child Hospital a b i l i t y to attend delayed Dr. occupational address to s p e c i a l needs. committed d e l a y e d c o g n i t i o n and skills, the parents the conducted at Children's Over pediatrician, a the evaluated "[s]upportive, began child c h i l d ' s a u t i s m and t h e r a p i s t who enjoyed the evaluation Dennis Dr. occupational took delayed sensory processing. a patient-intake relationship of intense r e s e n t m e n t , and problems, the between love, but form, the the family also one and in the which e x h a u s t i o n sometimes i n t e r f e r e d . family, 35 starting in October 2003, 2090264 began seeing Endert, Dr. a social The child within the school year education well Jodi Brooks, worker, entered Jefferson a psychologist, for counseling County i n 2003. The district, child t h e 2003-2004 s c h o o l at was Carolina support. Grantswood Elementary, s e t t i n g w i t h a one-on-one during and and a public the placed start in a of In therapy perform sessions, the mother r e l a t e d t h a t the s c h o o l had r e p o r t e d t h a t the was which the mother conveyed To in a supplement her meeting special with her obtained goals additional Community Services mental-health structure techniques met. program treatment the In in-home March 2004, at Glenwood, to help the Inc., a mother the therapy, mother the Family and Birmingham the f a m i l y implement r e s p i t e care t o , the c h i l d . f o r the b e n e f i t addressed late s e r v i c e s through center, f o r , and p r o v i d e advised parents were school education, c h i l d had c o n t i n u e d r e c e i v i n g speech and o c c u p a t i o n a l until was t o t h e c h i l d ' s needs and t h e mother's e x p e c t a t i o n s , representatives. also child d i s r u p t i v e and d e f i a n t ; however, t h e s c h o o l g e n e r a l l y responsive the special- a i d e and seemed t o year. school on parenting of the c h i l d . and Endert disciplinary In a d d i t i o n , the the c h i l d ' s health issues, c o n s i s t i n g mainly 36 2090264 of Dr. respiratory illnesses, earaches, and April 16, 2004, the child a d o l e s c e n t and c h i l d p s y c h i a t r i s t . child continue visited Dr. Moran, her focus, and the Dr. medications t a k i n g the medication Moran d i s c u s s e d the Prozac and melatonin father felt the child to had parents implemented suggested Dr. Moran. The better The May to 20, Dr. s i n c e she mother his the r e p o r t e d t h a t the c h i l d had begun t a k i n g improve the child's Although sensitivity medication related assist b e n e f i t s of address inherited the t h a t the s c h o o l had and to and p e r s e v e r a t i o n . medications, by risks Risperdal to other problems of compulsiveness on May Before Dennis to the assure enough t o w i t h s t a n d the In June 2004, support/education individual 7, 2004, seemed t o be doing Prozac. surgery, the mother took that child's the lungs on the child were clear procedure. the group sessions, to regimen c h i l d underwent a d e n o i d and tube p l a c e m e n t s u r g e r y 2004. an Dr. Moran recommended t h a t h e r s l e e p a n d t r y t a k i n g t h e m e d i c a t i o n M e t a d a t e CD the through Dennis. On the constipation, at parents together, the started as well mental-health 37 attending as a attending treatment center 2090264 operated by Glenwood, focusing disciplining the child and having the After child. Birmingham surgery. and The the t h e new school this year consistency when appropriate expectations of the family underwent appeared during using vacation, child child b o n d i n g w i t h M.H. As a beach on t o be returned to dental-rehabilitation doing well a n d t o be period. approached, t h e mother arranged f o r Glenwood t o send a r e p r e s e n t a t i v e t o Grantswood Elementary to make recommendations f o r the child. The m o t h e r testified that s h e l e a r n e d a t some p o i n t t h a t G r a n t s w o o d E l e m e n t a r y h a d lost funding to the c h i l d Endert of starting In the during a faith-based day. The school to attend mother informed the p o s s i b i l i t y f o r higher functioning siblings. A u g u s t o r September 2004, w h i l e u n d e r t h e s u p e r v i s i o n Grantswood Elementary school later, f o r a one-on-one a i d e the school c h i l d r e n and t h e i r employees The t h e summer t h a t s h e was d i s c u s s i n g w i t h h e r c h u r c h autistic of over playground, eventually employees, which found was the c h i l d r a n away not fenced. The the child some c r y i n g and screaming i n a b r i a r patch 30 o r 40 i n nearby from school minutes woods. mother t e s t i f i e d t h a t , f o l l o w i n g t h a t i n c i d e n t , t h e c h i l d 38 2090264 developed post-traumatic "meltdowns" control that, to escalate i f s h e was after that aggressive stress to began a t M.H., The m o t h e r t e s t i f i e d that the severe. The concerned 20, first time mother the placed the parents involved the source further placed protective of head increasingly animal, through done at that of the c h i l d the an 2004. began point a n d M.H. the child a On to The to v i s i t child's agitation. that she became September Children's at which point child. bedroom anything Dr. mother Finn also the school The to parents a peg b o a r d o v e r t h e c h i l d ' s bedroom window f o r purposes. The c h i l d r e m a i n e d i n C h i l d r e n ' s H o s p i t a l u n t i l 29, indicate i n which, had that the notes of behavior. her admitted out i n her arranged f o r a Glenwood r e p r e s e n t a t i v e identify was her had a meltdown child with child regressed f o r acute p s y c h i a t r i c care, became caused displayed like the c h i l d testified f o r the safety 2004, Hospital first she which Endert's eating and g e n e r a l l y things, window, the incident, the c h i l d behavior, other the point not r e s t r a i n e d . scratching among disorder, During her stay, the individualized behavior-modification 39 child was September placed program, and t h e on an parents 2090264 participated management, resources, in family monitoring parenting environment Initially, to therapy medication strategies, incorporate the child focused was side and the not her home to mimic her medication effects, garnering modifying skills receptive however, a f t e r a change i n her d i e t and from on the they to school learned. the treatment; the placement of routine, the child items began i n t e r a c t more a p p r o p r i a t e l y . A f t e r d i s c u s s i n g t h e m a t t e r the parents, the psychiatrists p r e s c r i b e d t h e c h i l d R i s p e r d a l and observe any at Children's Benadryl, s i d e e f f e c t s from the medication. t h a t t h e c h i l d s h o w e d a b r i g h t e r mood a n d upon receiving and more and routine, held a reports that compliant the recommendations, which they doctors once she the child had access the mental-health discharge conference, and conference parents and diagnosed discussed safety verbalized the the plans understanding child recommended t h a t t h e c h i l d seemed with and the that findings, child, concurrence. autistic toys hospital During the and impulsive favorite parents. c o n t i n u e t o see 40 effect, less to her regarding not Upon c o n c l u d i n g a calmer a l l with Hospital they d i d p r o f e s s i o n a l s at the with to disorder a psychiatrist to The and for 2090264 medication with in-home t h e r a p y behavior a staff, management, therapy, on management, t h a t t h e f a m i l y c o n t i n u e t h a t the daily that the that the child school provide basis, and that to participate family therapy restart focus occupational a one-on-one b e h a v i o r a l the play area at on the aide school be fenced. A f t e r the proactive the in child's discharge school discharge assuring that educational plan. The not seem babysitting her and to one-on-one a t t e n t i o n . the n e x t IEP meeting involve meeting. The educating child advocacy therapist school. to The formulate recommendations at the Dr. groups, a school, 41 in the that the as 2004, E n d e r t to and with in the the were Alabama Action encountering an occupational the therapist's received information implement he as enough parents the S p e c i a l Education met much recommended service apparently also plan meet receiving the problems t h e y were father could out child not very Brooks mother i n d i c a t e d t h a t the Committee, to a s s i s t w i t h the set special-education D i s a b i l i t i e s A d v o c a c y Program and with as the was became Elementary needs O c t o b e r 1, a the parents complained to the On mother with other be that child, Grantswood and mother did that of the 2090264 from relatives while he was in California regarding how s t a t e handled c h i l d r e n w i t h s p e c i a l e d u c a t i o n a l needs. indicated that the parents amount o f i n f o r m a t i o n child. The officials regarding to discuss the a and aide school system a l s o of the child report showing parents into school. that, aide. filed based a grievance Sparks C l i n i c The 2004- 2005 the r i g h t s of with school County c h i l d d i d not would the be need erected. delay The reentry father prepared of needed the her system. a mental- one-on-one p o s i t i v e response, school the Jefferson a met opinions child with contacted the the Endert "impressive" i t wanted to r e c e i v i n g no medical to help fence on the After but In response, then contacted the no indicated that professionals, behavioral the parents s t a t e d t h a t the that an educational problems, official one-on-one amassing the mother i n d i c a t e d t h a t Board of Education health were that The father p r o f e s s i o n a l s i n the U n i t e d Kingdom f o r f u r t h e r t e s t i n g i n an the and effort child. parents school did not year. resolve The child their went grievance to s t a r t e d back at Grantswood Elementary at the 2005- 2006 s c h o o l year. While attending 42 during the summer s c h o o l and beginning school in late of the August 2090264 2005, the teacher child gained access to attempted to q u i c k l y recover a c c i d e n t a l l y cut h e r s e l f badly. school a p a i r of did not blame b l a m e d h e r s e l f , and, the as child for a result, the the the s c i s s o r i n c i d e n t , the risk mixed for developmental a diagnosis cognitive deficits equivalent believed loving was of the and behavior. 3 of child caring had months. a number clinic for that set the among which behavioral should be i m p l e m e n t e d by the a litany and included child's that M.H. had indicated 43 to be at to in age including i n modifying of "a her educational that a those use of one-on-one the c h i l d ' s next IEP school. In O c t o b e r 2005, r e p r e s e n t a t i v e s reported disorder professionals indicated the her in part, due, strengths, help was in evaluated found clinic would out child c h i l d b e h a v e d a t an The of child recommendations, and again also retardation 5 family," The aide, was i n d i c a t i n g t h a t the years, recommendations mental she the incident. found to have a u t i s t i c delays; of regressed c h i l d was a teacher the briar-patch Following and following and incident, again she Sparks C l i n i c s c i s s o r s , the she as the When Although the p r i n c i p a l behavior by had the scissors. of Grantswood Elementary that the father had acted 2090264 sexually inappropriately incident and found that report, their which grievance, public-school with her. no e v i d e n c e the parents the parents DHR of sexual investigated abuse. perceived Following as r e t a l i a t i o n f o r removed b o t h children from the s y s t e m a n d t h e m o t h e r b e g a n home s c h o o l i n g t h e c h i l d r e n through a l i c e n s e d faith-based program. 1 1 t h e r e a f t e r a t t e n d e d a t h r e e - d a y s e m i n a r on a u t i s m The the children's home s c h o o l i n g The f a t h e r treatments. i n i t i a l l y went w e l l . The m o t h e r n o t i c e d t h a t t h e c h i l d was i n t e r a c t i n g w e l l w i t h church members, a n d t h e p a r e n t s became more a c t i v e i n a d v o c a c y issues for disabled visit t o t h e Sparks pervasive as children. well as behavioral defiance, c l i n i c again provided other Clinic, techniques 30, 2005, the child developmental disorder hyperactivity, and On N o v e m b e r was after a third diagnosed with and m i l d mental r e t a r d a t i o n , issues including and s i g n i f i c a n t the p a r e n t s w i t h t o use t o help aggression, impulsivity. The behavioral-modification the child, including a The record indicates that the parents eventually filed p e t i t i o n s f o r a s s i s t a n c e w i t h t h e U n i t e d States Department o f Education Office of C i v i l Rights and the American Civil L i b e r t i e s Union regarding the matter. However, t h e r e c o r d does n o t i n d i c a t e t h e a c t i o n s t a k e n b y t h o s e e n t i t i e s t o a s s i s t the parents. 11 44 2090264 r e c o m m e n d a t i o n t h a t i n t e r a c t i o n w i t h M.H. be encouraged. The parents recommendations in were addition advised to implement continuing management. for to B a s e d on financial to which the unpredictable precipitating wanted to hurt diagnoses, parents Finn the for the medication child Alabama Department After somebody, the behavior the without child mother any indicated admitted the in February The treating placed the doctors child supervision. that time plan to a was 2006, to stopped that she child back remained 10, 2006. a l l medications therapeutic milieu with replaced child's and medications, and Celexa, the with Seroquel, one-on-one at Zoloft, and instituted a structured behavioral-modification The indicated in Risperdal 16, initially They t h e n Depakote, and program. January overt child The h o s p i t a l from of accessed. into Children's Hospital for observation. the qualified c h i l d b e g a n e x h i b i t i n g more b i z a r r e dangerous event. Dr. through I n J a n u a r y 2006, the and see new the assistance Mental Health, those hospital in f o l l o w up a stable with Dr. discharged condition, Finn. 45 the to child, the who parents they with a 2090264 According child so to the parents, following d i d n o t seem t o be b e n e f i t i n g her discharge, the f r o m h e r new m e d i c a t i o n s , Dr. Finn changed t h e m e d i c a t i o n regimen. On F e b r u a r y 20, 2006, t h e c h i l d underwent t u b e - p l a c e m e n t s u r g e r y f o r h e r e a r s . The next day, the child experienced requiring t h e mother t o r e s t r a i n concerns, the parents Hillcrest H o s p i t a l on F e b r u a r y from Hillcrest indicate that been very loving the parents the 21, 2006. were wanted on The n e x t were admitted t o The i n t a k e completed t o be the family, and s u p p o r t i v e t o t h e c h i l d parents B a s e d on a l l t h e above by t h e mother involved with the the parents were and hoped t h e c h i l d day, t h e mother informed Endert considering placing the child Mental The stated with Health child to obtain a Medicaid waiver d i d n o t do w e l l above, on F e b r u a r y the reaction. child i n the child's a staff would that Department f o r assistance. i n Hillcrest 22, 2006, very outside the home a n d t h a t t h e m o t h e r w a s c o n t a c t i n g t h e A l a b a m a of records and that, although the c h i l d ' s c o n d i t i o n had stressful be s t a b i l i z e d . "meltdown" and Dr. F i n n had t h e c h i l d Hospital that c h i l d ' s treatment her. another Hospital. As member l a i d down bed, provoking a violent The c h i l d c o n t i n u e d t o r e q u i r e c o n s t a n t s u p e r v i s i o n 46 2090264 due to hyperactivity, assaultive behavior. participation Changes i n therapeutic much p o s i t i v e e f f e c t . testing. The discharged on M a r c h with child, Vistaril, In late after her discharge and however, 21, 2006, educational also the child 2006, out, and medication d i d n o t seem had very eventually into acting her exercises and R i s p e r d a l March to The c h i l d instructions that ReVia, i m p u l s i v i t y , sexual t o have poor reality improved and the care be k e p t and of the on t h e was parents medications as m o n i t o r e d by Dr. F i n n . t h e mother from H i l l c r e s t needs e s c a l a t e d . informed Endert that, Hospital, the child's The m o t h e r c o n t a c t e d care DHR a n d a r r a n g e d t o meet w i t h i t s " M u l t i p l e Needs C o m m i t t e e " t o o b t a i n financial April 2006, child's some assistance t h e mother also t o get help informed DHR f o r the child. that, sexually inappropriate conduct In b a s e d on t h e comments, she b e l i e v e d t h a t t h e c h i l d h a d hospitalized. and i n order while experienced she was The m o t h e r c o n s u l t e d w i t h D r . D e n n i s , D r . F i n n , a children's health insurance program c l i n i c regarding her concerns. On May 1, 2 0 0 6 , e n r o l l e d M.H. t h e mother informed Endert that she had i n a f a i t h - b a s e d school and that the c h i l d would 47 2090264 soon be evaluated Glenwood. treatment Dr. by Finn mental-health admitted center operated diagnosis of a u t i s t i c and moderate treatment "[the enjoyed child severe mental is a strong as also to a result, i n the school operated had 2, 2006, w i t h received the initial that that f o r [the the child benefit 2006. from Glenwood's the mother wanted t o The m o t h e r structure treatment enroll felt center. However, at i t sschool the the benefit child of the the c h i l d , school doubted the parents were that not able i n t h e e d u c a t i o n program a t Glenwood. failed, the parents arranged f o r the c h i l d 48 the and c o n s i s t e n c y because Glenwood d i d n o t have any v a c a n c i e s director a Glenwood d i s c h a r g e d the by Glenwood. at The for services indicate would b e n e f i t from the r i g i d child by mental-health 3, 2 0 0 6 , i n d i c a t e c e n t e r on J u n e 2 1 , appeared and, o n May f r o m May advocate notes from the treatment child to the retardation. "tremendous f a m i l y s u p p o r t . " intervention, the by Glenwood employed disorder, disruptive behavior disorder, Subsequent The child the c h i l d team's m e e t i n g n o t e s mother] child]." her to specialists school would to enroll After that and the plan t o be e v a l u a t e d b y 2090264 the Alabama eligibility In public with Department of Mental f o rresidential t h e meantime, the parents public-school appropriate, placement officials safe, with and developed and provide Endert advised the child school system could she hoped plight facing special Between schooled October recreational the least the restrictive professionals to the child's children. the public- s p e c i a l needs and spotlight the As a r e s u l t , the child trained to autistic i tappeared that children. 2006 therapy therapy IEP f o r rather educational the parents than place her system. the child. occupational and would d e c i d e d t o home s c h o o l the public-school an to free, that n o t meet autistic The p a r e n t s met t h e c h i l d was e n t i t l e d services t h e mother i n a objected and other the parents her The f a t h e r , h o w e v e r , inclusive, educators teach in enrolled summer-school program f o r e v a l u a t i o n . t o t h e I E P on t h e g r o u n d t h a t again t o determine services. c h i l d , which t h e mother signed. that Health and January The child through through also t h e mother received Children's Mitchell 49 2007, Place. speech Hospital home and and I n November 2090264 2006, t h e Department o f M e n t a l H e a l t h respite services began p r o v i d i n g f o rthe child. In J a n u a r y 2007, t h e mother r e p o r t e d child had b i t her tutor sleeping. in-home Dr. Finn and had also noted that, t o Dr. Finn h i t M.H. according while that the M.H. was t o t h e mother, t h e c h i l d needed "almost hand-over-hand s u p e r v i s i o n " to limit her impulse-control the parents agreed that difficulties. the child home s c h o o l i n g . By March was n o t b e n e f i t i n g The m o t h e r f e l t that the child time. his authority. nights primary care child students. resigned, forced Thus, outside at that t h e home of the child. i n t h e HANDS specializing was n o t be p l a c e d i n point, program, After the child's believed responded better t o t h e mother and the father I n May 2 0 0 7 , autistic the father i n a g r o u p home a t t h a t The f a t h e r t e s t i f i e d t h a t t h e c h i l d working the should from the mother's the c h i l d would benefit f r o m p l a c e m e n t i n a g r o u p home; h o w e v e r , that 2007, an children started took over the father enrolled educational program operated by in-home r e s p i t e s e r v i c e graduate provider and t h e f a t h e r ' s working hours extended, t h e mother t o quit working outside 50 t h e home. 2090264 In the 2007, Department Ability try March Plus. for the of the child. be a l l o w e d free i n t h e group the on J u l y The p a r e n t s access child 19, 2007, and s t a t e d she would receive operated by education, and envisioned that they to the child had a good p r o g n o s i s consistency home rehabilitation, d o e s n ' t w o r k , w e ' l l b r i n g h e r home." Finn t h e recommendation o f H e a l t h , met w i t h r e p r e s e n t a t i v e s o f of the c h i l d Plus development would of Mental upon The m o t h e r t e s t i f i e d t h a t t h e p a r e n t s a g r e e d t o placement Ability the parents, and t h a t , " i f i t The p a r e n t s met w i t h D r . t o him that they b e l i e v e d because of the s t r u c t u r e at the group home. and The placement would end Dr. F i n n ' s p s y c h i a t r i c care of the c h i l d , which Swamy. Dr. w o u l d be t u r n e d o v e r Finn summarized t o Dr. Manjula his interaction with At trial, the parents follows: "You know, l i k e many p a r e n t s t h e y w a n t e d a d v i c e . I gave them a d v i c e . And l i k e s m a r t p a r e n t s t h e y a r e , t h e y d i d n ' t t a k e my a d v i c e a l l t h e t i m e . T h e y w a n t e d t o make t h e i r own c h o i c e s a n d d e c i s i o n s a n d t a l k i t o v e r among t h e m s e l v e s . B u t , i n g e n e r a l , t h e y w e r e not non-compliant. They generally d i d what I recommended o r t r i e d a t l e a s t sometimes w i t h s u c c e s s 51 as 2090264 and s o m e t i m e s n o t s o . B u t t h e y w o r k e d good w o r k i n g a l l i a n c e , I felt." -- we had a Plus group 1 2 The child started living i n A t h e n s on J u l y 23, 2007. group home, residing i n constantly child the testified the talked and that with also the father mother "Q in the child Mason and about visited the child t o nurture loved began mother had of the close" relationship with the child visits the home atthe first t h e needs good r e l a t i o n s h i p w i t h attending Mason t e s t i f i e d t h a t the home, the telephone constantly mother] l i k e s after she developed a " v e r y mother and a very mother B o b b i Mason, a s u p e r v i s o r that, group on at the A b i l i t y mainly the father. a t t h e group on The home, t h e weekends. the v i s i t s because [thec h i l d ] . " "[the Regarding the v i s i t s , t e s t i f i e d as f o l l o w s : [ B y C o u n s e l f o r t h e p a r e n t s ] : When y o u a l l w e r e A b i l i t y Plus v i s i t i n g with [ t h e c h i l d ] , what The dissent summarizes the foregoing testimony as f o l l o w s : "Dr. F i n n f u r t h e r t e s t i f i e d t h a t t h e p a r e n t s would not always take h i s advice regarding how t o c a r e f o rthe c h i l d , a l t h o u g h he s t a t e d t h a t , i n g e n e r a l , t h e p a r e n t s were not 'non-compliant.'" So. 3d a t (Thomas, J . , dissenting). That r e a d i n g omits t h e c r u c i a l p o i n t t h a t Dr. F i n n f e l t t h e p a r e n t s were b e i n g "smart" i n e v a l u a t i n g h i s a d v i c e a n d r e a c h i n g t h e i r own d e c i s i o n s o n how b e s t t o t r e a t the c h i l d . Dr. Finn c e r t a i n l y d i d n o t imply t h a t t h e parents were i g n o r i n g h i s a d v i c e a t t h e p e r i l o f t h e c h i l d as t h e d i s s e n t ' s summary s u g g e s t s . 1 2 52 2090264 w o u l d be g o i n g on a r o u n d y o u v i s i t i n g with [the c h i l d ] ? a l l while you were "A: W e l l , i n t h e b e g i n n i n g i t was v a r i e d . A n d i t was s u c h a l o n g d r i v e . I m u s t s a y t h e r e w e r e t i m e s when we w o u l d come a n d e v e r y o n e w o u l d p l a y t o g e t h e r . T h a t w o u l d b e [M.H.] a n d [ t h e c h i l d ] w o u l d i n t e r a c t a n d t h e o t h e r c h i l d r e n as w e l l . "[M.H.] i s a v e r y c a r e t a k i n g l i t t l e mothering l i t t l e person. And she would take c h a r g e and she w o u l d s e t a t o n e f o r t h e c h i l d r e n a n d make up games for t h e m . I t was a l o t o f i n t e r a c t i n g w i t h t h e c h i l d r e n . And m o t h e r w o u l d be t h e r e . T h e r e were a l s o o c c a s i o n s w h e r e I w o u l d j u s t f a l l a s l e e p on t h e b e d with [ t h e c h i l d ] o r I w o u l d t a k e a nap w h i l e t h e k i d s w e r e p l a y i n g . T h e y w o u l d b e i n t h e r e w i t h me, b u t we w e r e a l l t o g e t h e r . "Times where [ t h e c h i l d ] w o u l d c r a w l i n bed and I w o u l d t i c k l e h e r a n d h o l d h e r . A n d o f t e n -- I would not leave u n t i l we h a d r e c o n n e c t e d on a n emotional l e v e l . T h a t was my o b j e c t i v e . T h e k i d s n e e d e d t o p l a y , b u t we n e e d e d t o b o n d . " 1 3 Mason testified that she sometimes felt that b e t w e e n t h e m o t h e r a n d t h e c h i l d was " j u s t considering the child's was a records therapy show thing that the t o o much diagnoses and behavior that [the mother] mother had been the liked cuddling touching" "but that [ i t ] t o do." engaging in The that The d i s s e n t misreads t h e f o r e g o i n g e x c e r p t t o i n d i c a t e t h a t t h e m o t h e r s o m e t i m e s n a p p e d d u r i n g v i s i t s w h i l e M.H. t o o k charge of the child. So. 3d a t (Thomas, J . , dissenting). The e v i d e n c e shows w i t h o u t dispute that the c h i l d was a l w a y s u n d e r t h e s u p e r v i s i o n o f a n a d u l t d u r i n g h e r v i s i t s w i t h t h e m o t h e r a t t h e A b i l i t y P l u s g r o u p home. 1 3 53 2090264 therapeutic activity mother testified admitted that, others, The she s i n c e t h e c h i l d was that the child although the c h i l d did like t o hug sexual-abuse the the parents. saw the child again find the child than she had days earlier. 52 the v i s i t s between the child skin show the 2 0 0 7 , w h e n s h e was by January nervosa. supplements child Records The and Ensure restore her Ability Plus staff, 9, hug staff testified "emaciated Mason 1 4 Plus January P l u s g r o u p home, b u t pounds anorexia in late made b y Ability that, 2008, and she child when was bones," b e e n when v i s i t i n g t h e p a r e n t s December 28, Ability was mother cuddling. d i d not l i k e to touch or allegations The needed the mother. members i n l a t e 2 0 0 7 i n t e r r u p t e d and much y o u n g e r , a n d she first alarmed much t h i n n e r approximately weighed 57 pounds r e t u r n e d by the p a r e n t s t o t h a t her 2008, mother when weight she immediately was had dwindled diagnosed began and, the c h i l d together with the on to with taking efforts e v e n t u a l l y regained the 30 the p r o t e i n d r i n k s to the c h i l d to help weight, to food the of weight. DHR o f f e r e d no e v i d e n c e t o s u p p o r t M a s o n ' s s u b j e c t i v e belief, w h i c h was not expert testimony, t h a t the c u d d l i n g b e t w e e n t h e m o t h e r a n d t h e c h i l d was a n i n a p p r o p r i a t e t h e r a p y for the c h i l d . 14 54 2090264 As s e t o u t a b o v e , DHR c o n d u c t e d i t s f i r s t January 30, 2008, report, the i n t h e absence o f t h e parents. team, representatives, I S P m e e t i n g on which consisted and Department of DHR, of Mental In the ISP Ability Health Plus employees, l i s t e d a s " f a m i l y members s t r e n g t h s " t h a t t h e f a m i l y l o v e d one another and children. reason that As noted, f o r DHR's allegations the of family wants what the ISP report involvement sexual with abuse. its attention. prior "both DHR sexual-abuse parents surrounding Accordingly, with M.H. February 11, 2008. year than the DHR d i d not supervisory s k i l l s that following i n v e s t i g a t i o n s i n 2005 a n d 2006, appropriate protective that capacities the children." returned M.H. other had p r e v i o u s l y determined, displayed Consistent trial, f o r the d i d n o t i n d i c a t e any the family i d e n t i f y any problem w i t h t h e parents' needed i s best that general theme, t o the u n r e s t r i c t e d custody The had been record i n the care and a h a l f and t h a t , except again remove doing exceedingly shows her from well. that, Apparently that f o r that on a t the time f o rher fear that home, court of the parents of the parents the family 55 the juvenile of f o r over DHR would the child reason, a was at the 2090264 close of the recommended dismissed, trial, that which the the guardian dependency ad petition the juvenile court closer to the child environment. he would moved there i n t h e summer meeting the parents presented and education Plus the 1 5 to live with o f 2009. employees a list the child was needs. On until 9, he finally 2008, and A b i l i t y regarding receiving while their County at a Plus, the care at the Ability commitment t o m e e t i n g 1 5 T h a t document s t a t e d , i n part: "After eight years of working with p r o f e s s i o n a l s , and researching both independently and i n s t r u c t u r e d forums, c o u p l e d w i t h what I have observed t h i s past year w i t h [the c h i l d ' s ] stay a t Ability Plus, I have come to a considered conclusion. "As [ t h e c h i l d ' s m o t h e r ] who h a s a n u l t i m a t e k n o w l e d g e o f who [ t h e c h i l d ] i s a n d w h a t s h e n e e d s , I am c o n v i n c e d t h a t w h i l e I need t h e s e r v i c e s o f A b i l i t y P l u s f o r s t r u c t u r e a n d f o r 24/7 h e l p w i t h [the c h i l d ] , (and I thank a l l o f you f o r your d i l i g e n c e a n d s u p p o r t up f r o n t ) , [ t h e c h i l d ] needs 56 be i n Birmingham and July o f DHR of concerns g r o u p home, f u l l y e v i d e n c i n g child's M.H. moved t o H u n t s v i l l e t o i n H u n t s v i l l e on w e e k e n d s , coordinated to and t o get out of the J e f f e r s o n The f a t h e r c o n t i n u e d stay as basically did. I n J u l y 2 0 0 8 , t h e m o t h e r a n d M.H. be litem 2090264 t h e a d d e d i n g r e d i e n t o f h e r M o t h e r a n d f a m i l y , who w i l l n u r t u r e h e r w i t h l o v e and warmth, and w i l l take a very personalized interest i n her health, development and welfare. [Hardy], I think the r e c o r d s DHR h a s o f my e x t e n s i v e w o r k a n d i n v o l v e m e n t in procuring professional and educational i n t e r v e n t i o n f o r [the child] bears witness to at l e a s t some o f t h e k n o w l e d g e , s k i l l s , a n d e x p e r i e n c e I possess. "That b e i n g said, i t i s my i n t e n t t o m o r e proactively involve myself i n a 'co-operative] r e l a t i o n s h i p w i t h A b i l i t y Plus and i n [thec h i l d ' s ] c a r e , w h i c h w i l l i n v o l v e a t l e a s t a n i n c r e a s e i n my v i s i t s with [the c h i l d ] , and a d i r e c t involvement with [the c h i l d ' s ] School, lEP's, Educational Programs, and i n developing a r e l a t i o n s h i p w i t h her Doctors. In light of this, what c o u r t e s i e s and c o n s i d e r a t i o n s w o u l d A b i l i t y P l u s r e q u e s t o f me? "I have requested a list of [the c h i l d ' s ] D o c t o r ' s names a n d c o n t a c t numbers. I have Dr. Reynolds, (ophthalmologist) a n d Dr. Swam[y], b u t I w o u l d l i k e h e r P e d i a t r i c i a n ' s name a n d h e r d e n t i s t ' s name. I w i l l s c h e d u l e i n d e p e n d e n t v i s i t s w i t h e a c h t o make s u r e a l l a r e a w a r e o f [ t h e c h i l d ' s ] c o m p l e t e H i s t o r y , a s I d i d w i t h D r . R e y n o l d s when I h a d t o educate him about [the c h i l d ' s ] Retinopathy of P r e m a t u r i t y a b o u t w h i c h h e h a d n e v e r h e a r d . T h i s was vital i n f o r m a t i o n t o [the c h i l d ' s ] diagnosis and p r o g n o s i s . I t i s c r i t i c a l t h a t I be b r o u g h t up t o d a t e on [ t h e c h i l d ' s ] m e n t a l a n d p h y s i c a l s t a t u s , and m e e t i n g one on one w i t h e a c h d o c t o r should a c c o m p l i s h much o f t h i s . " I a l s o want t o be c e r t a i n t h a t A b i l i t y P l u s h a s all of [the c h i l d ' s ] medical records, because I suspect t h a t i f you had u n d e r s t o o d and f o l l o w e d a l l of t h e r e c o r d s , t h i s most r e c e n t s i t u a t i o n i n v o l v i n g DHR may n e v e r h a v e h a p p e n e d . I t h o u g h t we h a d 57 2090264 communicated c l e a r l y i n the presence of Z i v a Hatcher o f M e n t a l h e a l t h a n d Amy Hubbard your ex-social worker, about the o r i g i n s , e x t e n s i v e investigations, p r o f e s s i o n a l c o n c l u s i o n s , and recommended management b y two p r o m i n e n t B i r m i n g h a m P s y c h i a t r i s t s a n d A u t i s m s p e c i a l i s t s , of [the c h i l d ' s ] s e x u a l o b s e s s i o n s , but I was mistaken. I'd like to keep any misunderstandings to a minimum through more effective communication and my own physical involvement. " I spoke w i t h Dr. D e n n i s , [the c h i l d ' s ] p r e v i o u s P e d i a t r i c i a n and t o l d h e r t h a t [the c h i l d ' s ] w e i g h t was a b o u t 5 5 - 6 0 p o u n d s , a n d t h a t s h e was p r o b a b l y i n e x c e s s o f 4 f e e t t a l l now. Dr. D e n n i s o f M o u n t a i n Brook, Alabama, has been c a r i n g f o r [the child] s i n c e s h e was a l i t t l e o v e r a y e a r o l d , a n d s h e h a s been concerned about [the c h i l d ' s ] h i s t o r y of b e i n g substantially under standard weight since her p r e m a t u r e b i r t h . We know t h a t o n e g o o d f l u v i r u s c o u l d emaciate [the c h i l d ] and p o t e n t i a l l y r e s u l t i n h o s p i t a l i z a t i o n . [The c h i l d ] h a d t h e RSV s h o t s e v e r y month f r o m A p r i l t o O c t o b e r f o r t h e f i r s t two y e a r s of her l i f e . " B o b b [ i ] M a s o n t o l d me t h a t y o u h a v e a n RX f o r [the child's] f o o d s u p p l e m e n t s . The a i d s t o l d me t h a t t h e r e was n o n e i n t h e home b e c a u s e [ t h e c h i l d ] goes t h r o u g h them f a s t e r t h a n M e d i c a i d w i l l pay. " I w o u l d l i k e t o a s k t h a t [ t h e c h i l d ] be g i v e n one supplemental drink after each meal. This [ e ] n s u r e s t h a t she w i l l e a t h e r m e a l s , b u t a l s o t h a t she w i l l g e t t h e e x t r a c a l o r i e s and n u t r i t i o n needed to t h r i v e . "I will augment any product that Medicaid r e f u s e s t o c o v e r . We h a v e b r o u g h t w h a t a m o u n t s t o a c a s e i n my c a r , a l o n g w i t h j u m b o c a n s o f R a v i o l i , f o r s n a c k s , b e c a u s e I know t h i s c a n b e c o s t l y , w h i c h 58 2090264 we'd like t o drop c h i l d ] r e t u r n s from off this school. afternoon when [the " I am r e q u e s t i n g t h a t I b e k e p t i n f o r m e d b y DHR w h i l e our t r i a l i s pending, and then by A b i l i t y Plus of anything that concerns [the child's] care, w e l f a r e , and t r a i n i n g . For a l l of the years of hard work and s t u d y I h a v e i n v e s t e d i n my precious daughter's life, I am a b l e to contribute i n a p o s i t i v e way t o h e r o v e r a l l c a r e , a n d w o u l d l i k e t o be c o n s i d e r e d a p r i m a r y r e s o u r c e , a n d k e p t i n t h e l o o p . My e f f o r t s a r e p r e c i s e l y why [ t h e c h i l d ] i s i n your facility now. I've been, f o r nine years, seeking a s s i s t a n c e w i t h , not e x c l u s i o n from [the child's] care. "I learned r e c e n t l y that her Medicaid waiver, f o r which I spent years p e t i t i o n i n g , had s i m p l y been a l l o w e d t o t e r m i n a t e f o r want o f minor p a p e r work t h a t s e e m s t o h a v e f a l l e n t h r o u g h some c r a c k . I h a d t h e p a p e r s s e n t t o my home, f i l l e d t h e m o u t a n d s i g n e d them, a n d [ t h e c h i l d ' s ] waiver has been reinstated as o f y e s t e r d a y 7/07/08, p e r Amanda Roberts o f t h e F l o r e n c e County Dept. o f M e d i c a i d . " I s p o k e w i t h Mr. R e e d a t S S I on J u n e 2 3 , 2008, and he informed me that [the child's] SSI [supplemental security income] payments h a d gone from a s t a t u s o f suspended, t o t e r m i n a t e d f o r l a c k of a t t e n t i o n . I t o l d him t h a t I had communicated [the c h i l d ' s ] l i v i n g s t a t u s a n d was a v a i l a b l e t o s i g n any documents n e c e s s a r y , b u t had never had any r e q u e s t . Amy H u b b a r d h a d t o l d me t h a t A b i l i t y P l u s A d m i n i s t r a t i o n w o u l d handle t h e paper work, and I j u s t t r u s t e d t h i s . Mr. Reed s a i d t h a t A b i l i t y P l u s has a l i a i s o n i n p l a c e a n d s h o u l d be a b l e fairly easily to request and f i l l out the necessary a p p l i c a t i o n , b u t an a p p l i c a t i o n w o u l d h a v e t o be resubmitted since i t was allowed to expire. Yesterday, the Medicaid Supervisor asked f o r my 59 2090264 A t t h a t p o i n t , H a r d y , t h e DHR the parents were apparently had see note supra to not d i d so. 5, been 8, attend a l lmedical on May be 2009, and the and the to case parents a l l IEP before. were psychiatric the In a d d i t i o n , invited caseworker, As instructed meetings, set eventually out that which above, invited appointments f o r the to child record i n d i c a t e s that t h e r e a f t e r they the f a t h e r c o n t i n u e d to conduct research p e r m i s s i o n t o communicate w i t h Mrs. A l l e n , and I e n c o u r a g e d h e r t o , so Mrs. A l l e n s h o u l d have b e e n c o n t a c t e d a n d u p d a t e d on a l l o f t h i s . I ' d l i k e t o s e e A b i l i t y P l u s r i g h t f u l l y c o m p e n s a t e d , a n d I'm a little s u r p r i s e d t h a t no one has s p o k e n up, but t h e s e a r e t h e t y p e s o f c h a l l e n g e s I hope t o h e l p a l l e v i a t e by b e i n g more p r e s e n t . " I have o b s e r v e d [the c h i l d ] t r e m b l i n g , g o i n g rigid, and exhibiting aggression, a l l of which i n d i c a t e t o me t h a t s h e may p o s s i b l y have toxic l e v e l s o f [ R i s p e r d a l ] i n h e r s y s t e m . We n e e d t o h a v e h e r b l o o d l e v e l s c h e c k e d a s s o o n a s p o s s i b l e . She has a l s o nodded o f f w h i l e s i t t i n g u p r i g h t i n c h a i r , i n f r o n t o f me. T h i s seems t o i n d i c a t e a p o s s i b l e excess of s e d a t i v e . T h i s c o u p l e d w i t h [the c h i l d ] g i v i n g h e r s e l f a b l a c k eye, and b e i n g a s k e d t o l e a v e h e r s w i m m i n g c l a s s a r e i n d i c a t o r s t o me that she needs t o have a r e - e v a l u a t i o n of her m e d i c a t i o n s and o f t h e i r t o x i c i t y l e v e l s . C o u l d we do t h i s a s s o o n as p o s s i b l e p l e a s e ? " 60 2090264 on a l t e r n a t i v e the methods date of the summary, the the child's autism up t o trial. In for treating parents mental that understand that appears the c h i l d undisputed suffers from that the a variety of c o n d i t i o n s i m p a i r i n g h e r a b i l i t y t o behave n o r m a l l y and the parents resource" modify have, as t h e mother p u t i t , i n an e f f o r t the behavior undisputed trial evidence that trial, presented mental also appears up t o t h e t i m e of the i n the education, despite their physical no t e s t i m o n y every c o n d i t i o n s and The e v i d e n c e continued participants of the c h i l d DHR those of the child. the parents t o be a c t i v e nurturing to treat "exhausted care, and separation. indicating that At t h e means e m p l o y e d b y t h e p a r e n t s t o meet t h e s p e c i a l needs o f t h e c h i l d were inappropriate indicates that, receives treatment the treatment parents. in while any in the c h i l d meeting future. The convinced otherwise the juvenile In fact, custody f o r her special of needs the DHR, almost evidence the the parents the special court remain needs could not been to of the committed of the c h i l d have child identical received while i n the custody Unquestionably, appropriately way. to i n the clearly and c o u l d n o t have r e s t e d i t s dependency 61 2090264 determination properly The mental also appears t h a t she the the parents could such as the child requires due to while advocating 1 6 The bedroom of at school, In arguing capability and p l a c i n g the in i t s brief t o meet the that aide child the t o be the with i n a group parents that child, of the the child home. simply child's special supervisory in evidence measures to assure the for a behavioral her supervision harm h e r s e l f . took various modifying that, o b t a i n i n g in-home s e r v i c e s t o augment t h e i r m o n i t o r i n g child, not child. undisputed does not t h a t the parents supervision, that A l l e g e d I n a b i l i t y of the Parents to P r o p e r l y Supervise the C h i l d conditions, to assure reveals ground s p e c i a l needs of evidence various order the meet the c. The on lack the needs, DHR The d i s s e n t a l s o argues t h a t the c h i l d i s a danger to other c h i l d r e n . So. 3 d a t (Thomas, J . , d i s s e n t i n g ) . However, t h e d i s s e n t has n o t c i t e d any l e g a l a u t h o r i t y t h a t a child who i s dangerous to other children is therefore dependent. The d e p e n d e n c y s t a t u t e a l l o w s a j u v e n i l e c o u r t t o t r a n s f e r c u s t o d y of a c h i l d i n o r d e r t o p r e v e n t harm t o the c h i l d , s e e L . B . S . v . L.M.S., 826 S o . 2 d 1 7 8 , 190 (Ala. Civ. App. 2002) ( p l u r a l i t y o p i n i o n ) , n o t t o p r e v e n t t h e c h i l d f r o m harming others. Nevertheless, we conclude t h a t the same evidence p r o v i n g t h a t the parents possess adequate s u p e r v i s o r y s k i l l s to p r o t e c t the c h i l d from harming h e r s e l f a l s o proves t h a t the p a r e n t s can p r o p e r l y s u p e r v i s e the c h i l d t o p r e v e n t her from harming others. 1 6 62 2090264 asserts which that had primary portion "Dr. F i n n not been caregiver stressed provided during of h i s testimony testified as the c h i l d needed by his supervision, [the mother], tenure." specifically the child's Actually, c i t e d b y DHR, in the Dr. Finn follows: "Q [ B y C o u n s e l f o r t h e p a r e n t s ] : A n d w e r e y o u e v e r a b l e t o d u r i n g t h e t i m e t h a t you worked w i t h [the c h i l d ] t o get those behaviors under c o n t r o l such t h a t you c o u l d s a y she wasn't a danger t o t h e s a f e t y and w e l f a r e of other c h i l d r e n or sometimes even adults? "A: W e l l , I f e l t that with supervision that was being p r o v i d e d by her p a r e n t s , s h e was reasonably s a f e . B u t w i t h o u t s u c h s u p e r v i s i o n , I was c o n c e r n e d f o r h e r s a f e t y . A n d , a l s o , c o n c e r n e d t h a t i f -- i n p a r t i c u l a r t h e m o t h e r who I w o r k e d w i t h m o s t o f t h e time wasn't able t o p r o v i d e t h a t support and t h a t limit setting and c o n t r o l over her b e h a v i o r , I d i d n ' t know t h a t s h e w o u l d b e s a f e . " Dr. Finn properly d i d not state supervising reasonably safe. supervision that c h i l d ] was the the Dr. the child Finn mother so provided reasonably safe." However, particularly as testified being parents, was that by to incapable keep that, her Dr. F i n n t h e m o t h e r , was 63 was the child "with parents, of the [the stated that i f not able to provide 2090264 that supervision, with appropriate t h e n he d i d not DHR d i d not the parents setting and know t h a t were The instructed in child's and to evidence use those record for the child expert of to so proper indicating techniques. discipline that minimize child the The from parents provide to 1 7 indicating child to control, avoid parents had harming triggers any record to attention to by and the to conduct, contains failed advocated been structure no properly r e c o r d a l s o shows t h a t t h e techniques limit had t o more b e n e f i c i a l The that appropriate the to behavior. that the as misbehavior, safe. testimony prevent designed child w o u l d be providing indicates to r e d i r e c t the reward implemented as techniques episodic misconduct, any incapable c o n t r o l so herself. consistency present the l i m i t s e t t i n g and an parents Amish T h e d i s s e n t r e a d s i n t o Dr. F i n n ' s t e s t i m o n y t h e d o c t o r ' s "doubts t h a t the mother c o u l d p r o p e r l y c o n t r o l the child's behavior." So. 3 d a t ( T h o m a s , J . ,, d i s s e n t i n g ) . . If Dr. Finn doubted the a b i l i t y of the mother to properly s u p e r v i s e t h e c h i l d , DHR c o u l d h a v e c l a r i f i e d t h a t o p i n i o n on cross-examination, keeping i n mind i t s burden of proving dependency by c l e a r and c o n v i n c i n g e v i d e n c e . H o w e v e r , DHR d i d n o t q u e s t i o n D r . F i n n f u r t h e r on t h a t p o i n t . We do n o t read Dr. F i n n ' s t e s t i m o n y as s t a t i n g any o p i n i o n t h a t t h e m o t h e r was i n c a p a b l e o f p r o p e r l y s u p e r v i s i n g t h e c h i l d . Moreover, n o t h i n g i n D r . F i n n ' s t e s t i m o n y i n d i c a t e s t h a t t h e f a t h e r was incapable of p r o p e r l y s u p e r v i s i n g the c h i l d . 1 7 64 2090264 psychologist as a last the parents had used p h y s i c a l r e s t r a i n t measure t o p r o t e c t During regarding and that the t r i a l , the child. Mason, i n responding t h e c h i l d ' s sexual a c t i n g out, to a question t e s t i f i e d as f o l l o w s : "... when [ t h e c h i l d ] w a l k e d b y a n d k i n d o f s m a c k e d my h a n d o r h i t my h e a d o r s o m e t h i n g , w h a t e v e r s h e d o n e . I s t o o d u p a n d , I s a i d , ... we do n o t do t h a t . I w i l l n o t h i t y o u . Y o u w i l l n o t h i t me. A n d h e r d a d answered and s a i d she l i s t e n e d t o you because you s p o k e i n a u t h o r i t y . W i t h h e r mom, she w i l l just laugh about i t and continue t o do i t , b u t h e s a i d s h e d o e s n o t d o me t h a t w a y . A n d s h e s t o p p e d . S h e s a i d I won't h i t y o u . I s a i d , no, you w i l l n o t h i t me." Even assuming t h a t the j u v e n i l e court from statement that simple appropriately to prevent that the child could have t h e mother extrapolated could not act from harming h e r s e l f , 1 8 an The d i s s e n t a l s o p o i n t s o u t t h a t t h e f a t h e r t e s t i f i e d that t h e m o t h e r w a s o v e r w h e l m e d b y t h e d e m a n d s o f home s c h o o l i n g t h e c h i l d a n d t h a t she m i s s e d t h e f i n a l two days o f trial, " i np a r t because o f h e r i n a b i l i t y t o cope w i t h t h e additional stress of the proceeding." So. 3d a t (Thomas, J . , d i s s e n t i n g ) . Actually, the father d i d not t e s t i f y t h a t t h e m o t h e r was i n c a p a b l e o f p r o t e c t i n g t h e c h i l d f r o m h a r m i n g h e r s e l f ; he s i m p l y t e s t i f i e d that t h e mother c o u l d n o t h a n d l e home s c h o o l i n g a c h i l d w i t h s p e c i a l n e e d s a n d t h a t t h e c h i l d was n o t b e n e f i t i n g e n o u g h f r o m t h a t f o r m o f education. The m o t h e r m i s s e d t h e l a s t t w o d a y s o f t h e t r i a l on t h e a d v i c e o f h e r p h y s i c i a n , who, i n a l e t t e r t o t h e j u d g e t h a t was e n t e r e d a s a n e x h i b i t a t t r i a l , s t a t e d t h a t h e was t r e a t i n g t h e mother f o r" i n n e r e a r d i s o r d e r r e s u l t i n g i n t h e l o s s o f h e r e q u i l i b r i u m and v e r t i g o . She i s a l s o manifesting significant a n x i e t y and h y p e r t e n s i o n from prolonged s t r e s s 1 8 65 2090264 issue that support we do n o t d e c i d e , a finding that to properly § 12-15-1(10)k. "[w]hose supervise responsibilities also the c h i l d . ... a plural, See A l a . dependent are unable Code the a b i l i t y 1975, former child to t o and f o r t h e c h i l d lack as a child discharge their (emphasis added)); see J . B . v . D e K a l b C o u n t y D e p ' t o f Human R e s . , 12 S o . 3 d 100 (Ala. C i v . App. 2008) children (plurality a r e n o t dependent Mason, responded mother, the occurrence The f a t h e r of t h e t r i a l , child. father i s incapable prevent more not Mason readily that than that, As stated the that child of the many nuclear w i t h i n 60 t o assume f u l l - t i m e no e v i d e n c e that two-parent f o rthem). among of properly her from harming to i n a testified further contains (recognizing uncommon he w o u l d b e a b l e The r e c o r d caring conveyed to h i s authority an families. father opinion) i f one p a r e n t household i s capable of properly by i n t e r p r e t a t i o n would not the parents, (defining parents that care days of the i n d i c a t i n g that the supervising the c h i l d so as t o herself. " H o w e v e r , DHR p r e s e n t e d no e v i d e n c e i n d i c a t i n g t h a t t h e mother s u f f e r e d from any c o n d i t i o n t h a t would p r e v e n t h e r from adequately supervising the child. 66 2090264 Moreover, Plus and we n o t e the techniques that elementary of the child. successfully prevented Williamson, evidence school shows the that child Ability attends use s i m i l a r t o those employed by t h e parents t o c o n t r o l the behavior Mason, the evidence does supervising Those t e c h n i q u e s the child Duncan, not indicate the child than from Bowden, that have n o t always harming herself, and N i x t e s t i f i e d . anyone i s more the parents. f a i l e d t o s h o w how d e p r i v i n g t h e p a r e n t s The capable DHR has as of utterly of the custody ofthe c h i l d has m a t e r i a l l y lessened t h e i n c i d e n c e s o f s e l f - i n j u r i o u s behavior On had o r improved the other hand, regressed while stated the supervision the child receives. i n the care that the child herself before t h e mother of A b i l i t y had stopped her admission testified that Plus. urinating to the A b i l i t y the c h i l d The m o t h e r o r d e f e c a t i n g on Plus but t h a t she had r e c e n t l y resumed t h a t b e h a v i o r . group Mason home agreed t h a t t h e c h i l d a p p e a r e d t o be r e g r e s s i n g i n t h e p e r i o d l e a d i n g up to the t r i a l , other misbehavior detailing the self-injurious committed by the c h i l d home a n d i n t h e c u s t o d y o f DHR. 67 while That testimony behavior and i n t h e group tends t o prove 2090264 that the c h i l d a c t u a l l y r e c e i v e d s u p e r i o r care and s u p e r v i s i o n in t h e home o f t h e p a r e n t s . The record finding that from harm. capable contains the parents insufficient evidence cannot adequately t o support protect The r e c o r d shows t h a t t h e p a r e n t s a the child a r e a t l e a s t as a s DHR o f p r o p e r l y s u p e r v i s i n g t h e c h i l d . Hence, t h e j u v e n i l e c o u r t c o u l d n o t have r e s t e d i t s f i n d i n g o f dependency on that ground. d. At could oral have indicating custody. up argument, found that treatment The P a r e n t s ' DHR the Medical contended child the parents f o r the child Choice that dependent intended the juvenile based evidence t o t r y a new c o u r s e i f the child was returned to The m o t h e r t e s t i f i e d t h a t , d u r i n g t h e p e r i o d to the t r i a l , while l i v i n g at the A b i l i t y like "a space that i f t h e c h i l d was r e t u r n e d would "detoxed," medications cadet" and " a z o m b i e . " immediately as Dr. F i n n take h a d done c o u l d be r e e v a l u a t e d . 68 to Dr. years their leading a n d was a c t i n g The f a t h e r t o the custody her of P l u s g r o u p home, the c h i l d had e x h i b i t e d very "drugged b e h a v i o r " he on court testified of the parents, Finn earlier, to have her so t h a t h e r The f a t h e r t e s t i f i e d that 2090264 he would then specialists take the child who u s e a p r o g r a m one designed which the father had researched. conjunction with themedical to the to The Solomon, The f a t h e r t e s t i f i e d t h a t , i n treatment, theparents would a l s o a n a l y s i s and teaching D e p a r t m e n t o f Human R e s o u r c e s , 335 ( A l a . C i v . App. 1 9 9 1 ) , finding autism t h a t he h a d s t u d i e d . I n R.C. v . S t a t e 2d several by Dr. R i c k i m p l e m e n t i n t h e home a d a p t i v e - b e h a v i o r techniques of a child child court reversed a judgment d e p e n d e n t on t h e b a s i s t h a t t h e c u s t o d i a n s would not consent lengthen this 587 So. to a surgical one o f t h e c h i l d ' s legs. operation of designed 587 S o . 2 d a t 3 3 7 - 3 8 . c o u r t h e l d t h a t t h e S t a t e D e p a r t m e n t o f Human R e s o u r c e s i s authorized medical treatment 1(10)e., only treatment being. to intervene under when deemed and obtain a judgment c o m p e l l i n g t h e A l a . Code the custodians necessary 587 S o . 2 d a t 3 3 8 . 1975, former of a child f o r the child's I t follows § 12-15- are refusing a health that, under c h i l d w o u l d a l s o be dependent i f t h e form o f m e d i c a l or well- R.C., a treatment s e l e c t e d by a parent endangers t h e h e a l t h o r w e l l - b e i n g oft h e child. t w o s c e n a r i o s , h o w e v e r , t h e S t a t e may n o t Absent those intervene i n the medical d e c i s i o n s made b y 69 parents. 2090264 At any oral a r g u m e n t , DHR evidence father child dependent in any 3d to failure on of dependency of the the juvenile the basis way. by The the dissent (Thomas, how a J., decision method of t r e a t m e n t numerous other In the c h i l d w o u l d be could the presented described explain child. court of not at fails evidence i n d i c a t i n g t h a t the treatment, program to t r y another recognized the i t had So. i t also f o l l o w i n g the indicates the the program, but parents autism, endanger the dissenting), the indicating that would mentions conceded that parents' for treatments, absence of harmed by not by find the the proposed any new child treatment plan. VI. In conclusion, this i m p l i e d l y found t h a t the a l l e g e d i n the holds f a t h e r d i d not g r o u n d p r o v e n by However, a f t e r t h o r o u g h l y finds that a reasonable clearly that the convinced juvenile commit s e x u a l DHR. of the f a c t - f i n d e r c o u l d not 70 find the evidence, of the as court the s u f f i c i e n t evidence reviewing dependency court abuse This juvenile court could nevertheless c h i l d d e p e n d e n t on a n y court court dependency p e t i t i o n s f i l e d by determines t h a t the trial. Conclusion at this have been child. We 2090264 t h e r e f o r e r e v e r s e t h e j u v e n i l e c o u r t ' s j u d g m e n t , a n d we r e m a n d the case w i t h i n s t r u c t i o n s t h a t t h e j u v e n i l e court dismiss t h e dependency p e t i t i o n of the child t o the c h i l d and restore custody to the parents. REVERSED AND REMANDED WITH Thompson, without relating P . J . , and Bryan, INSTRUCTIONS. J . , concur i n the result, writings. Thomas, J . , dissents, with joins. 71 writing, which Pittman, J . , 2090264 THOMAS, J u d g e , d i s s e n t i n g . I court respectfully d i dn o t have b e f o r e grounds, the dissent. other than I disagree that i t c l e a r and c o n v i n c i n g the alleged sexual Our s t a n d a r d which juvenile the of review court heard evidence of abuse o f t h e c h i l d f a t h e r , upon w h i c h i t c o u l d have f o u n d t h a t dependent. the juvenile the child i n a dependency ore tenus by was case i n evidence i s deferential. "'Matters o f dependency and c h i l d custody a r e w i t h i n the d i s c r e t i o n o f t h e t r i a l c o u r t . Where o r e t e n u s evidence i s presented, the judgment of the t r i a l c o u r t i s p r e s u m e d c o r r e c t a n d w i l l be r e v e r s e d on a p p e a l o n l y u p o n a s h o w i n g t h a t i t was p l a i n l y a n d p a l p a b l y wrong.'" L.H. v. Lee County Dep't o f Human (Ala. C i v . App. 2 0 0 9 ) ( q u o t i n g (Ala. C i v . App. The juvenile herself and in t o have others, inappropriate ways, case was found that the child the child and t h a t appropriate providing sufficient that this that providing determination F.G.W. v . S.W., 911 S o . 2 d 1, 5 2004)). testimony court R e s . , 40 S o . 3 d 7 4 7 , 7 4 9 acts the parents supervision support the child sufficient the was d e p e n d e n t . 72 i s a danger t o out i n s e x u a l l y are not capable and care for f o r the f o r the trial of child, court's 2090264 The meltdowns mother testified i n c l u d i n g one that i n 2004 o r instance when t h e t h r o u g h the bedroom window, b r e a k i n g that own the child physical that and during that also and "would j u s t body the her that feces and testified behaviors and testified that, herself, when she feet until to she to they make[s] of the the to that and Mason, babies," and Mason s t a t e d t h a t the "wanting to hit a baby or out of The that the 73 the group self-injurious of the child harm harm child from hit any "stomp her was "will an to would "pick child Mason the home child would to herself tendency c h i l d has want[ing] mother room." examination she control children. group her stated A b i l i t y Plus other Plus head testified scratch the child's an her mother exhibited t e s t i f i e d that i t bleed," According had Ability bleed," or the had endangering The bite harmed performs Mason a l s o until had mother fits i t a l l over child she Plus returns herself. "smear because Ability visitation. her that would child put f o r M.H.'s s a f e t y . child the The w o u l d be house manager at that the child [M.H.]." child afraid the i t . having possibly m o t h e r was B o b b i Mason, the home, start those meltdowns the testified take and 2005 a skin danger younger obsession with a that baby," 2090264 "[the child] hits aggressive." younger k i d s , " and t h a t Mason further t e s t i f i e d that dangerous t o younger c h i l d r e n . had stated testified Mason that the c h i l d regarding the c h i l d i s "pretty the c h i l d could be A c c o r d i n g t o Mason, t h e f a t h e r d i d not mind t h e mother. Mason an i n c i d e n t when t h e c h i l d h a d s t r u c k h e r . stated: " I s t o o d up a n d , I s a i d [ t o t h e c h i l d ] , we do n o t do that. I w i l l not h i t you. Y o u w i l l n o t h i t me. And [ t h e f a t h e r ] answered and s a i d she l i s t e n e d t o you b e c a u s e you spoke [ w i t h ] a u t h o r i t y . With [the m o t h e r ] , she w i l l j u s t l a u g h about i t and c o n t i n u e t o do i t , b u t he s a i d s h e d o e s n o t do me t h a t w a y . And she s t o p p e d . " Mason a l s o t e s t i f i e d t o t h e c h i l d ' s t e n d e n c y t o behave i n a sexually inappropriate manner. would ask the f a t h e r i f he w a n t e d the that child had s t a t e d c h i l d ' s ] mouth." touch herself Mason stated that the c h i l d " t o do t h e h u n c h i e " a n d t h a t "[the father's] peepee went i n [ t h e Mason f u r t h e r t e s t i f i e d t h a t t h e c h i l d and p u t h e r f i n g e r would into her vagina. A c c o r d i n g t o Mason, t h e r e a l s o had been p r o b l e m s w i t h t h e parents' "the visits with the child. [mother's] c u d d l i n g [there] Mason stated was i n a p p r o p r i a t e " was t o o much t o u c h i n g . " 74 that at times and t h a t she "felt Mason f u r t h e r s t a t e d t h a t t h e 2090264 mother would get such harsh speaking Rhonda school a n g r y and was inappropriate Williamson, the c h i l d had speak h a r s h l y a to the i n f r o n t of special-education attended, staff and the child. teacher t e s t i f i e d t h a t the that at child the needed one-on-one s u p e r v i s i o n because the c h i l d would a c t erratically and t r y to Williamson, the child became focused on classroom, stating that she intended Williamson stated that twice child. harm h e r s e l f or Williamson further d a n g e r t o c h i l d r e n who Donna Duncan, had attended, child episodes at yelled curse agitated at as h i t the did testified that that child at there had had acted Duncan, the on younger children child head-butted made testified child. the child and had her, "split and could." 75 that the his the other was school been a child. the numerous inappropriate, that the aggressively, to she hit the assistant had as other the or hard in than the when t h e Duncan [her] to words, another child child the testified "fixate" had youngest inclusion an and child the to were younger or s m a l l e r them. hurting According According comments. toy school others. child child eye sexual would and open," child become talk had had had about thrown that a the "slapped 2090264 According to Duncan, comments one d a y w h i l e that s h e was g o i n g and that hot dog. to the c h i l d Duncan the child began t h e c h i l d was e a t i n g stated go t o a home w h e r e making "obscene the child down." a man w o u l d According the man t o l d her that her daddy," that was not going child the would often child to t e l l . " deep, gravelly out of h e r " the h e l l years, the child also stated i n t h e dungeon room t o c r y , and t h a t about "opening daddy's t o be a f r a i d " when that making the child peepee" with t h e man these comments. children. Duncan According i n inappropriate, conversations and a c t i o n s f o r the last 76 ina w o u l d t o u c h h e r own g e n i t a l s has engaged when t h e c h i l d a n d how would t a l k the child beginning that a n d how s h e was " n o t the child grab the g e n i t a l s of other mother, related voice going to hold [the Duncan f u r t h e r t e s t i f i e d t h a t t h e Duncan s t a t e d t e s t i f i e d that and w o u l d the talk with the "whip she would " s t a y was " n o t g o i n g going further t o Duncan, her. gestures" she had had s h e was n o t g o i n g to hurt a h o o c h i e woman" then s a i d that and t h a t he h a d "a h o o c h i e b i g t h i n g t h a t ' s child] sexual a hot dog, s t a t i n g t o e a t t h e h o t dog " l i k e began making four to sexually or five was s i x o r s e v e n y e a r s o l d . 2090264 Amanda Bowden, the to i n c l u s i o n a s s i s t a n t at the c h i l d had a t t e n d e d , t e s t i f i e d t h a t the c h i l d would harm herself head-butting "try as another by t r y i n g to bite objects and t h a t or s c r a t c h the c h i l d hard that herself would take as she c o u l d push." would h i t , k i c k , the c h i l d was Bowden and a t t e m p t aggressive also prevent the c h i l d According child had behaviors to b i t e toward attended, such staff other aggressive toward any child had the c h i l d the face and without slap the child Bowden other walk and Duncan, children, another at across Bowden supervision school that the Nix also child was she had that another N i x had a l s o the chest, the self-injurious her h a i r . i n t o t h e room and s l a p child and the stating any p r o v o c a t i o n . members children. exhibited and p u l l i n g the again child observed without provocation. Nix had by that children. the other N i x , the nurse as s c r a t c h i n g as observed from harming to Melissa testified, the or toys testified further t e s t i f i e d that the c h i l d required constant in attempt t o p h y s i c a l [ l y ] i n s e r t them i n t o h e r v a g i n a a r e a and p u s h child to school also t e s t i f i e d that the c h i l d had t o l d h e r t h a t a man come i n t o h e r r o o m , h a d t h r o w n h e r b e d c o v e r s a n d m a t t r e s s 77 2090264 to the floor, Nix, and had p u l l e d the c h i l d had made] testified a testified the man motion the c h i l d that the c h i l d with her hips." to her vagina Nix, the aggressive had that anyone had t o l d a man what her that of the other happened. i t had Nix stated that at the school. and s e x u a l i z e d had been the c h i l d According to b e h a v i o r s e x h i b i t e d by t h e autistic c h i l d r e n t h a t she observed. Dr. Edgar Finn, f r o m when t h e c h i l d trial, M.H., a p s y c h i a t r i s t who h a d t r e a t e d was 6 y e a r s t e s t i f i e d that others, olduntil tutor 2 years the c h i l d before i n c l u d i n g other children such as h e r y o u n g e r and t h a t t h e c h i l d required close supervision. and drawn b l o o d was sleeping. the t h e c h i l d was a d a n g e r t o h e r s e l f a n d t o s t a t e d t h a t he was n o t s u r p r i s e d t h a t M.H. further then s a i d , i n a d i f f e r e n t v o i c e , with c h i l d were n o t t y p i c a l Nix Nix her not to t e l l alone to and h e r bottom. to N i x , the c h i l d never been According u h , u h , uh and [ t h e c h i l d " d a d d y " who h a d come i n t o h e r r o o m . had down. t h e n became u p s e t and s t a t e d t h a t t h e her, pointing had t o l d According "started saying thrusting that man h a d h u r t then her pants or that the c h i l d the c h i l d According 78 Dr. F i n n had b i t t e n her had s t r u c k t o Dr. F i n n , sister, M.H. the c h i l d while was a 2090264 danger spite that the t o M.H. i f the c h i l d of the child's take child's Dr. F i n n was r e a s o n a b l y parents, Dr. F i n n wasn't setting child] could issues testified their In stated visits with a l l o w i n g M.H. "to also t e s t i f i e d that the could that also able testified place the child's the mother to who provide w o u l d be s a f e , " properly indicating control a t t e m p t e d t o home s c h o o l schooling Additionally, he was that support own and that most o f t h e that limit I d i d n ' t know t h a t [ t h e the mother The home w i t h the child father and d e a l i n g w i t h t h e c h i l d and was t o o much f o r t h e m o t h e r t h e m o t h e r was a b s e n t by t h e behavior. stayed the c h i l d , child "concerned h i s doubts that the child's the provided I worked w i t h that t h a t when t h e m o t h e r child's he f e l t that and c o n t r o l over h e r b e h a v i o r , testified the Dr. F i n n t h e mother safe with the supervision being -- i n p a r t i c u l a r time g r o u p home, supervised. at r i s k . Although if 1 9 behavior, a nap d u r i n g Plus of the c h i l d . impulse-control safety take at the A b i l i t y charge" not c l o s e l y aggressive she would sometimes child was to handle. f o r t h e f i n a l two d a y s o f T h e m o t h e r d i d s t a t e t h a t h e r m o t h e r was i n t h e r o o m , i n d i c a t i n g t h a t t h e c h i l d r e n were n o t c o m p l e t e l y l a c k i n g a d u l t supervision. 1 9 79 2090264 the trial, i n part additional because stress of testified that regarding how t o c a r e in general, stated of her i n a b i l i t y the proceeding. the parents to other, The had home, u t i l i z i n g with the child's j u v e n i l e court refused take although d e s i r e t o remove t h e c h i l d Plus assist Finn The that, parents g r o u p home a n d r e t u r n t h e c h i l d outside-the-home services to care. also Plus g r o u p home. heard Johnson, that she had had d i f f i c u l t y evidence that also a DHR at the A b i l i t y case worker, g e t t i n g the parents to attend an the parents' t h e mother became irate and she kept s c r e a m i n g t h a t she would n o t l e t anyone take M.H. home f o r a n I S P m e e t i n g , stated that s h e was J o h n s o n was n o t a l l o w e d cancel t o a s k M.H. one o f t h e p a r e n t s the ISP meeting. encouraged to attend allowed being According the child's 80 that, testified meeting. without testified the parents ISP Johnson Johnson h i s advice from her c u r r e n t t o c o o p e r a t e w i t h DHR a n d t h e s t a f f Iris further he s t a t e d were n o t " n o n - c o m p l i a n t . " placement at the A b i l i t y their Dr. not always f o rthe child, the parents an e x p r e s s would t o cope w i t h t h e when s h e w e n t t o t o s e e M.H.; any q u e s t i o n s present, causing however, o r s e e M.H. Johnson t o t o Mason, t h e p a r e n t s psychiatric were appointments; 2090264 however, parents while t h eparents also a minimal child she had been Hardy, irate at theA b i l i t y during Plus Hardy group stated swearing. home that she c o u l d Hardy also yelling i n the background after at that v i s i t another The and Plus The support and had provided banned and that social worker, the Hardy with the testified f r o m one o f t h e s t a f f at the one o f t h e mother's hear t h e mother that mommy," the entire time. the parents from visits. yelling the child and that that was and saying the child was According t h e group any f u t u r e v i s i t s had t o take to home place location. juvenile observed trial. leave, DHR home. testified mommy, Ability just a call during "leave, Hardy, custody child one o f h e r v i s i t s group had received a telephone Plus any v o l u n t a r y i n DHR's t o Latasha h a d become Ability one a p p o i n t m e n t . amount o f c l o t h i n g . According mother attended had not provided the child only had only court their heard demeanor I t i simportant the testimony over t o remember of the witnesses t h e course of a four-day that " ' [ t ] h e ore tenus r u l e recognizes that the t r i a l judge i s b e t t e r able than i st h ea p p e l l a t e court t o determine t h e c r e d i b i l i t y o f t h e w i t n e s s e s . The trial judge has t h e d i s c r e t i o n of accepting or 81 2090264 rejecting testimony of a witness and o f g i v i n g a p p r o p r i a t e w e i g h t t o t e s t i m o n y b e c a u s e he o r s h e i s i n a b e t t e r p o s i t i o n t o c o n s i d e r t h e demeanor o f t h e w i t n e s s and t h a t w i t n e s s ' s candor and/or e v a s i o n . I f the judge has determined t h a t a w i t n e s s has l i e d o r i s l y i n g u n d e r o a t h , he o r s h e c a n t a k e t h a t f a c t into c o n s i d e r a t i o n when w e i g h i n g other evidence p r e s e n t e d b y t h a t w i t n e s s . S e e J a m e s v . J a m e s , 532 So. 2 d 1 0 3 1 ( A l a . C i v . A p p . 1 9 8 8 ) . ' " Dabbs v . F o u r Trees, 2008)(quoting DiIorio App. Inc., 36 S o . 3 d 5 4 2 , 557 v. Long, (Ala. 839 S o . 2 d 6 5 0 , 654 C i v . App. (Ala. C i v . 2001)). "In o r e tenus p r o c e e d i n g s , t h e t r i a l c o u r t i s t h e s o l e judge o f t h e f a c t s and o f t h e c r e d i b i l i t y o f w i t n e s s e s , and t h e t r i a l c o u r t s h o u l d accept o n l y t h a t t e s t i m o n y i t c o n s i d e r s t o be w o r t h y o f b e l i e f . O s t r a n d e r v . O s t r a n d e r , 517 S o . 2 d 3 ( A l a . C i v . A p p . 1987). Further, i n determining the weight t o be a c c o r d e d t o t h e t e s t i m o n y o f any w i t n e s s , t h e t r i a l c o u r t may c o n s i d e r t h e d e m e a n o r o f t h e w i t n e s s a n d the witness's apparent candor or evasiveness. Ostrander, supra." Woods "The v . Woods, ore tenus unique 'better position So. presumption 3d i s based to directly opportunity testimony.'" So. 653 S o . 2 d 3 1 2 , 314 t o pass observe upon F l u k e r v. W o l f f , , 2 d 1 5 4 , 155 (Ala. ( A l a . C i v . App. on the t r i a l court's the witnesses and i t s the c r e d i b i l i t y [Ms. 1 0 8 1 7 0 8 , M a r c h 2010)(quoting ( A l a . 1996)). 82 1 994 ) . of their 19, 2010] Ex p a r t e P i e l a c h , 681 2090264 "'This court substitute Bryowsky, 2d 208-09 Redford, is own 855 view So. Sankey, of that 961 So. v. 1 994 ) , quoting father, Duncan, 896, 638 i n turn been the t r i a l 901 So. Young 916, v. to Finn harm a l ltestified herself and other N i x , the mother, regarding the c h i l d ' s s e x u a l l y i n a p p r o p r i a t e manner. father, v. judgment i f i t of our would have reached judge."'" 918-19 Young, Estrada "regardless ( A l a . C i v . App. 2d 90 9 S o . Additionally, court's o r w h e t h e r we parte Sankey 2007) a v. (quoting ( A l a . C i v . App. 37 6 S o . 2d 737, 739 1979)). Dr. Bowden, testified ( A l a . 2003)). Duncan, Bowden, W i l l i a m s o n , and tendencies we v . K.G., 20 05)(quoting the t r i a l or to c o u r t . Ex G.H. by c r e d i b l e e v i d e n c e , had 2d C i v . App. 555 to affirm Griggs, Mason, 551, evidence result Griggs (Ala. 2d supported different (Ala. 1996).'" ( A l a . C i v . App. i s our duty fairly to reweigh the evidence i t sjudgment f o r t h a t of the t r i a l 676 S o . 2 d 1322 206, "'[i]t i s not allowed the N i x , the mother, the regarding the children father, tendencies The t e s t i m o n y and and Mason, Dr. Finn to a c t out in a o f Dr. F i n n , t h e t h e m o t h e r , and Mason r a i s e d a q u e s t i o n as t o w h e t h e r the p a r e n t s , p a r t i c u l a r l y t h e mother, were c a p a b l e 83 child's of p r o p e r l y 2090264 caring for, supervising, juvenile court also and c o n t r o l l i n g the c h i l d . observed that two o f t h e f o u r d a y s o f t h e t r i a l . court a l s o had before litem, urging The j u v e n i l e court the child's self-injurious would child could was r e t u r n e d lacked have be i n d a n g e r to find concluded and a g g r e s s i v e of harming to the parents' the a b i l i t y was a b s e n t f o r A d d i t i o n a l l y , the juvenile i t the recommendation the j u v e n i l e court child t h e mother to sufficiently o f t h e g u a r d i a n ad the c h i l d from the evidence of behaviors herself home dependent. this court's and, e v i d e n c e was judgment therefore, wrong. Thus, sufficient determining that I would that because supervise judgment was affirm court. Pittman, J . , concurs. 84 the the parents or I believe the juvenile was not p l a i n l y t h e judgment i f the c h i l d to support the c h i l d that the o r M.H. a d e q u a t e l y a d d r e s s t h e c h i l d ' s many s p e c i a l n e e d s . that The dependent, and palpably of the j u v e n i l e

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