Opinion
CL-2022-1192
06-09-2023
D.S. v. PIKE COUNTY DEPARTMENT OF HUMAN RESOURCES
Norman Hurst, Montgomery, for appellant. Steve Marshall, att’y gen., and Felicia M. Brooks, chief legal counsel, and Faith Perdue Twiggs, asst. att’y gen., Department of Human Resources, for appellee.
Norman Hurst, Montgomery, for appellant.
Steve Marshall, att’y gen., and Felicia M. Brooks, chief legal counsel, and Faith Perdue Twiggs, asst. att’y gen., Department of Human Resources, for appellee.
FRIDY, Judge.
D.S. ("the mother") appeals from a judgment of the Pike Juvenile Court ("the juvenile court") determining that Da.D. ("the child"), her child, is dependent. We dismiss the appeal in part and affirm the juvenile court’s judgment. Background
The mother was abused as a child and grew up in foster care. She gave birth to the child in January 2020. De.D. ("the father") is the child’s father. The mother and her boyfriend D.M.H.-L. ("the boyfriend") began living together in November 2021.
On July 23, 2022, Troy Regional Medical Center ("TRMC") reported to the Pike County Department of Human Resources ("DHR") that the child had bruising on his penis. TRMC subsequently transferred the child to Children’s Hospital of Alabama ("Children’s Hospital"), a hospital in Birmingham. Because the child had unexplained injuries, the medical staff at Children’s Hospital requested that Dr. Michael Alan Taylor, a professor in the Pediatrics Department at UAB Hospital, consult on the child’s case. The parties stipulated at the adjudicatory hearing in this action that Dr. Taylor, who, among other things, is board certified in the field of child-abuse pediatrics, is an expert regarding injuries caused by child abuse.
Dr. Taylor testified that, after receiving the information regarding the child collected by Children’s Hospital, he examined the child. His physical examination revealed that the child had a very tender abdomen that was causing him quite a bit of pain and that, therefore, the child did not want to move. Dr. Taylor observed that the child had bruising on the top of his penis but not on the bottom of his penis. Dr. Taylor also observed that the child had bruising on both of his inner thighs, on one of his upper eyelids, and on one of his arms. Moreover, Dr. Taylor observed that the child had some compression marks on his lower chest and upper abdomen. A CT scan revealed that the child had contusions on both of his lungs and several lacerations of his liver and that he had an adrenal hemorrhage on the right side near the liver. The child’s laboratory tests indicated that his liver enzymes and pancreatic enzymes were elevated.
After examining the child, Dr. Taylor interviewed the mother and the mother’s boyfriend. They did not report any accidental cause of the child’s injuries. Dr. Taylor testified that it would take a significant blow to cause the injuries that the child had sustained and that the injuries were not consistent with his merely falling on the floor. Dr. Taylor opined that the bruising in the groin area was most likely caused by an adult kicking the child in the groin. Dr. Taylor opined that the child’s internal injuries and the compression marks on his lower chest and upper abdomen were most likely caused by an adult stomping on the child while he was lying on his stomach. Dr. Taylor testified that the child remained in Children’s Hospital until July 27, 2022.
On July 27, 2022, DHR commenced a dependency action in the juvenile court. DHR’s petition specifically alleged that the child was "dependent" based on § 12-15-102(8)a.2, Ala. Code 1975, and that "the child is without a parent, legal guardian or legal custodian willing and able to provide for [the child’s] care, support or education and the child is in need of care and supervision." As the factual basis of its petition, DHR alleged:
"On July 23, 2022, [DHR] received a call from [TRMC] in regards to [the child]. It was reported that [the child] had bruising covering his penis. Later, [the child] was transferred to Children’s Hospital. [DHR] spoke with the child abuse specialist doctor, who determined that [the child] had a liver laceration, pulmonary contusions, and bruising on his groin area, face, and stomach. He also had compression injuries to his abdomen, consistent to [sic] being stomped on. The injuries to his groin were consis
tent to [sic] being kicked by an adult. There is a current investigation with Troy Police Department. [The child’s] father, [De.D.], reported that he had not seen the child in over a week and [the child’s] mother, [D.S.], has not produced any explanation for the cause of injury, as cited in Section 12-15-102(8)[a.]2. of the Code of Alabama 1975."
DHR also filed an affidavit executed by Ashley Carroll, a DHR employee, that attested to the facts alleged in the petition and, further, explained: "Due to the unknown [identity] of [the person] who harmed [the child], the extent of the child’s injuries, and the pending criminal investigation, it is determined that there is no parent, legal guardian, or custodian willing or able to protect the child."
That same day, the juvenile court held a shelter-care hearing. At the shelter-care hearing, the mother testified that she had left home at approximately 8:20 a.m. on July 23, 2022; that she had left the child in the care of her boyfriend; that the child was not sick when she had left home; that she returned home at approximately 8:40 a.m. on July 23, 2022; and that she had found the child throwing up in the bathtub when she returned. The mother testified that she immediately took the child to TRMC. The mother further testified that she had told the staff at TRMC that the child may have gotten sick because of an adverse reaction to the bubble bath in the bathtub. The mother said that, on July 22, 2022, the day before, she had noticed bruising on the child’s penis but that she had pressed on the bruises and that her pressing on them did not cause the child any pain. The mother said that, because the bruising was not causing the child any pain, she took him to school that morning. The mother told one of the child’s teachers to watch him to see if he had any symptoms caused by his bruised penis. Another one of the child’s teachers later reported that the child had eaten three bowls of cereal and had drunk three cups of milk and that he was running and playing normally. The mother testified that she subsequently telephoned the office of the child’s pediatrician to make an appointment. The nurse she spoke to asked her what the child’s symptoms were. The mother testified that she had told the nurse that the child had bruising on his penis but was running and playing normally at school. The mother asked the nurse practitioner if the child might be having an adverse reaction to the bubble bath that he was bathed in. The nurse told her to stop bathing him in bubble bath and to bathe him in baking soda for thirty minutes. That night, the child fell asleep before the mother could give him a bath in baking soda, and she never gave him one.
The mother testified that, several days before she saw the bruising on the child’s penis on July 22, 2022, the child had gotten out of his car seat while she was driving and that when she braked the car to stop in order to put him back in the car seat, he fell on the floor of the car. He did not cry but put his hand on his stomach. She did not see any evidence of an injury until she saw the bruising on the child’s penis on July 22, 2022.
The mother, testified that she did not believe the child’s injuries had been caused by child abuse; rather, she believed that those injuries had been caused by his getting out of the car seat and falling on the floor of the car several days before July 22, 2022. She specifically denied that her boyfriend could have abused the child.
The mother testified that the father had committed acts of violence against her when they had lived together, that he had been driving around her apartment complex, and that she had sought a protection- from-abuse order but that he had not yet been served with process.
On August 11, 2022, the juvenile court entered a shelter-care order in which the juvenile court determined "that there was probable cause to believe that the allegations of the petition were true and that the release of the child would present a serious threat of substantial harm to him." The shelter-care order also placed the child in the care of T.S. ("the paternal grandmother"), the child’s paternal grandmother, pending the adjudicatory hearing; ordered that the child have no unsupervised contact with his parents pending the adjudicatory hearing; and ordered that the child have no contact with the boyfriend pending the adjudicatory hearing.
The juvenile court held the adjudicatory hearing on October 6, 2022. At that hearing, the mother denied that she had caused the child’s injuries. She testified that the Individualized-Service-Plan ("ISP") team, which had been formed relative to the child, had held a meeting on August 4, 2022, and that, at that meeting, the ISP team had told her that the mother’s boyfriend had to move out of the apartment where she was living. The next day, she celebrated her birthday with her boyfriend and another couple in New Orleans, Louisiana. She further testified that, on August 7, 2022, her boyfriend moved out of her apartment and that she had not had any communication with him since then. The mother testified that, despite her having heard Dr. Taylor opine that the child’s injuries had been caused by child abuse, she still did not believe that the child had been abused. She testified that her father and her sister have skin conditions that cause them to bruise easily and that the child’s bruising might be the result of the same condition.
The mother testified that she is not afraid of her boyfriend and that she has never seen the child react to her boyfriend in a manner that would indicate that he is afraid of her boyfriend. She testified that, although she did not know what had caused the child’s injuries, her boyfriend had not caused those injuries. When the juvenile court asked the mother whether the photographs of the child showed bruises on his penis and inner thighs, she said that it looked like a rash to her. When the juvenile court asked the mother whether a photograph of the child’s face showed a bruise on one of his eyelids, she testified that that bruise had "formed" while he was at TRMC. She also testified that the bruising on his lower chest and upper abdomen "formed" while he was at TRMC.
On October 11, 2022, the juvenile court entered an adjudicatory order. In the adjudicatory order, the juvenile court determined that clear and convincing evidence established that the child was dependent, placed the child in the care of the paternal grandmother pending the outcome of the dispositional hearing, ordered that the child not have unsupervised contact with his parents, and ordered that the child have no contact with the mother’s boyfriend. The adjudicatory order also set the case for a dispositional hearing on November 7, 2022.
On November 7, 2022, the juvenile court held a dispositional hearing. That same day, the juvenile court entered a final judgment that determined that clear and convincing evidence established that the child remained dependent, vested the paternal grandmother with custody of the child, and granted the mother and the father supervised visitation. The mother then timely filed a notice of appeal.
Analysis
[1] The mother contends that DHR’s petition did not invoke the juvenile court’s dependency jurisdiction because, she says, it failed to allege that the child was depen- dent. As noted above, DHR’s petition specifically alleged that the child was "dependent" and that "the child is without a parent, legal guardian or legal custodian willing and able to provide for [the child’s] care, support or education and the child is in need of care and supervision." In addition, the petition alleged that the child, while in the custody of the mother, had suffered serious injuries that an expert had opined were consistent with child abuse; that the mother had not provided any explanation regarding how the child had suffered the injuries; that law enforcement was still investigating the cause of the child’s injuries; and that, therefore, returning the child to the mother at that time would create a risk of serious harm to the child.
Section 12-15-102(8)a. defines a dependent child as:
"[a] child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:
"….
"2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
"….
"8. Who, for any other cause, is in need of the care and protection of the state."
Clearly, DHR’s petition alleged that the child was a dependent child as that term is defined by § 12-15-102(8)a.(2) and (8). Therefore, we reject the mother’s argument that DHR’s petition did not invoke the dependency jurisdiction of the juvenile court.
[2] The mother also contends that the juvenile court’s shelter-care order was erroneous. The July 27, 2022, shelter-care order placed the child in the care of the paternal grandmother from July 27, 2022, until the juvenile court entered the adjudicatory order on October 11, 2022. The October 11, 2022, adjudicatory order determined that clear and convincing evidence established that the child was dependent and again placed the child in the care of the paternal grandmother. The final judgment, which the juvenile court entered on November 11, 2022, determined that clear and convincing evidence established that the child remained dependent, vested the paternal grandmother with custody of the child, and granted the mother and the father supervised visitation.
In K.A.B. v. J.D.B., 279 So. 3d 607 (Ala. Civ. App. 2018), K.A.B. appealed from a final judgment of the DeKalb Juvenile Court awarding J.D.B. custody of their child. K.A.B. argued on appeal that a shelter-care order that the DeKalb Juvenile Court had entered was erroneous. Rejecting that argument, this court stated:
"[T]he [DeKalb Juvenile Court’s] shelter-care order has been supplanted by a final judgment that awards sole physical custody of the child to [J.D.B.] Because no relief ordered by this court can modify the shelter-care order entered by the [DeKalb Juvenile Court], these issues are moot. See T.J. [v. Winston Cnty. Dep’t of Hum. Res., 233 So. 3d 361, 365 (Ala. Civ. App. 2017)]. Accordingly, we dismiss [K.A.B.’s] appeal to the extent it challenges the [DeKalb Juvenile Court’s] shelter-care order or [the court’s] purported failure to hold a 72-hour hearing."
In the present case, as in K.A.B., the July 27, 2022, shelter-care order has been supplanted by a final judgment that determined that clear and convincing evidence established that the child was dependent and vested the paternal grandmother with custody. The shelter-care order was in ef- fect only from July 27, 2022, until the juvenile court entered the adjudicatory order on October 11, 2022. In the present case, as in K.A.B., no relief ordered by this court can modify the shelter-care order. Therefore, any issues regarding the propriety of the July 27, 2022, shelter-care order are moot, and, consequently, we dismiss the mother’s appeal insofar as she attempts to challenge the July 27, 2022, shelter-care order. See id.
[3] Finally, the mother argues that the juvenile court erred in vesting the paternal grandmother with custody because, she says, the paternal grandmother was not a party to the case. In pertinent part, § 12-15-314, Ala. Code 1975, provides:
"(a) If a child is found to be dependent, the juvenile court may make any of the following orders of disposition to protect the welfare of the child:
"….
"(3) Transfer legal custody to any of the following:
"….
"c. A relative or other individual who, after study by the Department of Human Resources, is found by the juvenile court to be qualified to receive and care for the child."
Nothing in § 12-15-314 requires that a relative be a party to the dependency case as a condition precedent to the juvenile court’s transferring custody to that relative. Therefore, we find no merit in the mother’s argument that the juvenile court erred in vesting custody in the paternal grandmother because she was not a party to the case.
The mother does not develop a coherent argument that the juvenile court did not have before it clear and convincing evidence establishing that the child was dependent when it entered the final judgment in this case. Therefore, we will not reverse the juvenile court’s judgment on that basis. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So. 2d 317, 319 (Ala. 2003). Moreover, even if we were to consider the issue as having been properly raised, our review of the record convinces us that the juvenile court had before it sufficient evidence from which it reasonably could have been clearly convinced that the child was dependent.
In summary, we dismiss the mother’s appeal insofar as she attempts to challenge the juvenile court’s July 27, 2022, sheltercare order, and we affirm the juvenile court’s judgment.
APPEAL DISMISSED IN PART; AFFIRMED.
Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur.