author: BRYAN, Judge. MOORE, Judge,

text:
    T.G. v. HOUSTON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2070025.
    Court of Civil Appeals of Alabama.
    June 20, 2008.
    Rehearing Denied Aug. 15, 2008.
    Certiorari Denied Oct. 10, 2008 Alabama Supreme Court 1071643.

      Shannon A. Rash, Dothan, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Lynn S. Merrill, asst, attys. gen., for appellee Department of Human Resources.
   BRYAN, Judge.

T.G. (“the mother”) appeals a judgment terminating her parental rights regarding T.Ny.A.A., a girl born on May 30, 2005; T.Ny.G., a girl born on April 6, 2004; T.K.L.A., a girl born on February 21, 2003; and T.N.A., a girl born on January 21, 2002 (collectively referred to hereinafter as “the children”). We affirm.

The record indicates the following. In August 2005, T.Ny.A.A. was airlifted to Children’s Hospital where she was diagnosed with skull and rib fractures, a fractured leg, and retinal hemorrhaging. T.Ny.A.A. was also diagnosed with an older leg fracture that was healing. T.Ny. A.A. has subsequently been diagnosed with cerebral palsy and remains severely disabled as a result of these injuries.

On August 8, 2005, the Houston County Department of Human Resources (“DHR”) filed dependency petitions regarding the children. In addition to allegations of physical abuse regarding T.NyAA., DHR claimed that the children were being neglected because its investigation discovered that the children were dirty, with matted and dirty hair, and undiapered even though diapers were found in the house. Additionally, DHR’s investigation found that T.K.L.A. and T.N.A. required dental surgery because their teeth were rotted and infected. Neither the mother nor F.A., the father of several of the children, see note 1, supra, was criminally charged as a result of T.Ny.A.A.’s injuries; however, as a result of its investigation, DHR found that physical abuse was “indicated” with respect to the mother and F.A. and that medical neglect based on the mother’s “failure to follow through with [T.Ny.A.A.] being on her apnea monitor” was also “indicated.” The children were removed from their mother’s custody and placed together in foster care.

On May 22, 2007, DHR petitioned the juvenile court to terminate the parental rights of the mother and F.A. The juvenile court held an ore tenus hearing regarding DHR’s petitions on September 19, 2007. At the hearing, the juvenile court heard testimony from the mother, from Susanna Oakley, the DHR caseworker assigned to this case, and from the children’s maternal grandmother. F.A. did not testify at the hearing, and he did not contest the termination of his parental rights as to T.Ny. A.A., T.K.L.A., and T.N.A. See note 1, supra. No person claiming to be the father of T.Ny.G. appeared at the hearing. Also, by the time of the hearing, the maternal grandmother and a maternal aunt had filed petitions for custody. The maternal aunt, however, failed to appear at the hearing, and her petition for custody was dismissed.

The testimony at the hearing established the following. The mother testified that on the evening that T.Ny.A.A. was injured, she had been out playing bingo and had left the children with F.A. When the mother returned later that evening, she noticed a bruise on T.Ny.A.A.’s right cheek. The mother testified that she questioned F.A. about the bruise on T.Ny. A.A.’s cheek and that he responded by telling the mother “to go back where [she] came from.” The mother testified that she did not know if anything was wrong with T.Ny.A.A. that evening because T.NyAA. had previously experienced skin problems for which she was receiving medical treatment. The mother testified that the bruise on T.Ny.A.A.’s cheek appeared darker the following morning. The mother also testified that, when she would touch T.Ny.A.A., the child would “hurt” and “freeze up.” The mother further testified that she took T.Ny.A.A. to the hospital after determining that T.Ny.A.A.’s condition was worsening.

The mother testified that she did not know how T.Ny.A.A. had been injured, but she believed that F.A. had caused those injuries. The mother also testified that F.A. had told her three different stories regarding what had happened on the evening that T.Ny.A.A. was injured. The mother further testified that domestic violence had been “an issue” in her relationship with F.A. Additionally, the mother testified that she did not plan to continue her relationship with F.A. and that she would seek an order of protection against him and call the police if F.A. came around her or the children.

On cross-examination, however, the mother testified that she had again become pregnant by F.A. after the incident in which T.Ny.A.A. had been injured while in his care. The mother also testified that she had continued an “off and on” romantic relationship with F.A. after T.Ny.A.A. had been injured.

The mother testified regarding her housing and employment. The mother testified that, at the time of the hearing, she was living in a two-bedroom apartment that she believed had adequate space for the children. The mother also testified that she had two jobs and worked from 10:00 a.m. until 11:00 p.m.; however, she did not testify as to the number of days she worked each week. The mother admitted that she had been unemployed from November 2006 until March 2007 and that she had been unemployed for “the majority of the time” during the two years preceding the hearing. The mother further testified that the maternal grandmother would be willing and able to assist her with caring for the children while the mother was working.

The mother testified that she had been visiting the children at DHR’s facilities on a weekly basis for two hours each visit. The mother also testified that she had asked Oakley about regaining custody of the children. The mother further testified that DHR had not investigated her apartment; however, the mother admitted that she had not informed DHR of her latest address. Additionally, the mother testified that Oakley had informed her that her attorney would need to file a petition so that she could receive unsupervised visitation with the children; however, the mother admitted that she had never contacted her attorney regarding filing a petition to change her visitation status.

The mother testified regarding an Individualized Service Plan (“ISP”) that was dated August 11, 2005. According to the mother’s testimony, that ISP indicated that DHR’s goal was to return the children to the mother’s custody. The mother testified that she had completed all the requirements contained in that ISP. The mother also testified that she had complied with every request made by DHR and that she did not know of anything else that she needed to do in order to get her children back.

The maternal grandmother testified regarding her petition for custody of the children. The maternal grandmother testified that, at the time of the hearing, she had three children residing in her house. Two of the children residing in her house, a 15-year-old girl and a 17-year-old boy, were her own offspring. The mother and F.A. are the'parents of the other child, F.A., Jr., a 15-month-old boy. She also testified that she resided with her husband, who suffered from emphysema. The maternal grandmother further testified that she was financially able to provide for the children; however, neither she nor her husband was employed at the time of the hearing, and they apparently survived on slightly more than $1,200 per month. Additionally, the maternal grandmother testified that she had “an opportunity” to move back into a four-bedroom house in which she had previously resided; however, she was residing in a two-bedroom house at the time of the hearing.

The juvenile court questioned the maternal grandmother as to why she had waited until two years after DHR took custody of the children to file her custody petition. The maternal grandmother claimed that she had been trying to petition for custody but that “the Department of Family and Children” had “refused” to let her file a custody petition. She further claimed that DHR had provided her with “no help” in petitioning for custody of the children. The juvenile court also questioned the maternal grandmother regarding whether she had spoken with an attorney during the two years that the children had been in DHR’s custody. The maternal grandmother replied that she had attempted to hire an attorney but that she could not afford one.

Oakley testified that the juvenile court had ordered a home study on the maternal grandmother’s house after she had filed her custody petition. On Oakley’s recommendation, the maternal grandmother’s house was not approved. Oakley testified that the maternal grandmother’s house did not have adequate space for the children in addition to the other five people who already resided in the house.

Oakley testified that no person at DHR had told the maternal grandmother that she could not file a custody petition. Oakley also testified that she did not file a petition on behalf of the maternal grandmother because she could not have “back[ed] up ... and agree[d] with” her custody petition. Oakley further testified that the maternal grandmother had been dealing with a number of issues regarding her own children, including her 15-year-old daughter’s truancy and her 17-year-old son’s having been committed to the custody of the Department of Youth Services.

Oakley testified that DHR had determined that the maternal grandmother was not a possible placement for the children after they were removed from the mother’s custody. Oakley testified that DHR had made this determination because DHR did not know how T.Ny.A.A.’s injuries had occurred and the mother had been living with the maternal grandmother at that time. Oakley further testified that she believed that the maternal grandmother would be “taking on more than she could handle” if she was awarded custody of the children while also supporting her own children and F.A., Jr.

Oakley testified that F.A. had previously named the children’s paternal grandmother as a possible placement for the children. Oakley testified that the paternal grandmother’s house was evaluated and denied. Oakley also testified that the paternal grandmother had not visited the children or made any inquiries as to their well-being at any time since they had been placed in DHR’s custody. Oakley further testified that no other relatives from F.A.’s family had contacted DHR regarding the children. Additionally, Oakley testified that she had been contacted by Roosevelt Mitchell, who is the husband of the maternal grandmother’s sister. Mitchell informed Oakley that the maternal grandmother had contacted him regarding the children; however, Mitchell told Oakley that he was not interested in assuming custody of the children and could not take care of the children.

Oakley testified that DHR had not been able to reunite the children with the mother because she had “not shown any stability as far as a home.” Oakley testified that there had been times when she was not aware of the mother’s living arrangements and that she did not know where the mother was living at the time of the hearing. Oakley also testified that the children had not been returned to the mother because DHR did not know how T.Ny.A.A.’s injuries had occurred. Oakley further testified that the mother had “never been in a position where [DHR] felt like [it] could start reunification.” Additionally, Oakley testified that reunification was not possible because there existed “no stable home or parents to reunify [the children] to.”

Oakley testified that DHR had implemented ISPs with the mother and that the mother had not met certain requirements of those ISPs. Oakley testified that the mother had set a counseling appointment but had not followed through with it; however, Oakley testified that the mother had completed parenting classes. Additionally, Oakley testified that she did not know if the mother had her own house at the time of the hearing and that the mother had previously demonstrated instability regarding her housing. Furthermore, Oakley testified that, the day before the hearing, she had visited a house at which the mother had been residing. Oakley, while visiting that house, learned that the house was not owned by the mother; instead, Oakley determined that the house was owned by the maternal aunt’s son and that the mother had only recently begun residing there after previously residing with the maternal grandmother.

Oakley testified that DHR had continuing concerns regarding the incidents of domestic violence that were occurring between the mother and F.A. Oakley testified that the most recent incident had occurred in June 2007, at which time F.A. had stabbed the mother in her thigh with a fork. Oakley also testified that, despite the mother’s allegation that FA. was responsible for T.Ny.A.A.’s injuries and multiple incidents of domestic violence that had occurred between the mother and F.A., the mother and F.A. had continued their romantic relationship “off and on” during the more than two years since the children had been removed from the mother’s custody.

On September 20, 2007, the juvenile court entered a judgment terminating the mother’s parental rights as to the children. The mother timely appealed.

The mother raises two issues on appeal. First, the mother argues that insufficient evidence supports the juvenile court’s judgment terminating her parental rights. We disagree.

“ ‘In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief.’ Clemons v. Clemons, 627 So.2d 431, 434 (Ala.Civ.App.1993).” Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004). Also,

“ ‘[t]he ore tenus rule provides that a trial court’s findings of fact based on oral testimony “have the effect of a jury’s verdict,” and that “[a] judgment, grounded on such findings, is accorded, on appeal, a presumption of correctness which will not be disturbed unless plainly erroneous or manifestly unjust.” Noland Co. v. Southern Dev. Co., 445 So.2d 266, 268 (Ala.1984).’ ”

Ex parte R.E.C., 899 So.2d at 279.

We are ever mindful that “[t]he paramount consideration in a case involving the termination of parental rights is the best interests of the children.” Q.F. v. Madison County Dep’t of Human Res., 891 So.2d 330, 335 (Ala.Civ.App.2004). However, “[t]he termination of parental rights is a drastic measure, and the courts gravely consider such action.” K.A.C. v. Jefferson County Dep’t of Human Res., 744 So.2d 938, 940 (Ala.Civ.App.1999)(cit-ing Ex parte Beasley, 564 So.2d 950 (Ala.1990)). Furthermore, “[t]he termination of parental rights is reserved for the most egregious of circumstances.” B.G. v. State Dep’t of Human Res., 875 So.2d 305, 308 (Ala.Civ.App.2003).

In Ex parte Beasley, supra, our supreme court stated:

“The two-prong test that a court must apply in a parental rights termination case brought by a custodial parent consists of the following: First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in § 26-18-7[, Ala.Code 1975]. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered. (... [I]f a non-parent, including the State, is the petitioner, then such a petitioner must meet the further threshold proof of dependency.)”

564 So.2d at 954. Section 26-18-7, Ala. Code 1975, provides:

“(a) If the court finds from dear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“a. Murder or voluntary manslaughter of another child of that parent.
“b. Aiding, abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of another child of that parent.
“c. A felony assault or abuse which results in serious bodily injury to the surviving child or another child of that parent. The term ‘serious bodily injury’ means bodily injury which involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
“(8) That parental rights to a sibling of the child have been involuntarily terminated.
“(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:
“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.
“(c) In any case where the parents have abandoned a child and such abandonment continues for a period of four months next preceding the filing of the petition, such facts shall constitute a re-buttable presumption that the parents are unable or unwilling to act as parents. Nothing in this subsection is intended to prevent the filing of a petition in an abandonment case prior to the end of the four-month period.”

(Emphasis added.)

“Clear and convincing evidence” is “ ‘[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting § 6 — 11—20(b)(4), Ala.Code 1975). We are ever cognizant that, as an appellate court, we cannot reweigh the evidence. However, as an appellate court, we must determine whether clear and convincing evidence supports the juvenile court’s conclusion that grounds exist warranting termination of the mother’s parental rights. See § 26-18-7.

In this case, the juvenile court found as grounds for the termination that the mother was unable or unwilling to discharge her parental responsibilities to and for the children, that the mother had not been able to provide for the physical, emotional, and financial needs of the children, and that the mother had not been willing or able to provide a stable home for the children.

Clear and convincing evidence supports the juvenile court’s judgment terminating the mother’s parental rights. A juvenile court must consider, among other things, instances of abuse and maltreatment of the children before terminating parental rights. § 26-18-7(a)(3), Ala.Code 1975. The juvenile court received undisputed evidence demonstrating that the children had been severely neglected while in the mother’s care. At the time that the children were removed from the mother’s custody by DHR, they were found to be dirty and undiapered, even though diapers were found in the house, and two of the children’s teeth had rotted to the extent that dental surgery was necessary. Furthermore, the juvenile court received evidence — in the form of the mother’s testimony — demonstrating that the mother had been physically abused by F.A. on numerous occasions and that F.A. had caused T.Ny.A.A.’s injuries. This evidence alone is sufficient to support the juvenile court’s determination that the mother was unable or unwilling to discharge her parental responsibilities to and for the children. See S.E. v. State Dep’t of Human Res., 862 So.2d 664, 674 (Ala.Civ.App.2003) (affirming the trial court’s judgment terminating the parental rights of the mother and the father when the evidence demonstrated, among other things, that the daughter had abscessed teeth and had never visited a dentist, that the daughter had come to school wearing undersized and soiled diapers, and that the father had physically abused the mother and the daughter).

Additionally, the evidence demonstrates that the mother had continued an “off and on” romantic relationship with F.A. despite the fact that T.Ny.A.A. had suffered crippling injuries while in F.A.’s care. The mother testified that she had not inflicted those injuries and that F.A. had offered three conflicting explanations as to what caused T.Ny.A.A.’s injuries. Furthermore, at the hearing, when asked if she believed that F.A. was responsible for T.Ny.A.A.’s injuries, the mother answered, “Yes, sir.... ” The mother testified that she would not continue her romantic relationship with F.A. after he was released from jail; however, the juvenile court was free to disbelieve that testimony. Although the evidence was controverted, apparently the juvenile court adopted the view of the evidence indicating that the mother would likely continue that relationship and thus subject the children to further physical abuse from F.A. if she regained custody. This evidence further supports the juvenile court’s determination that the mother was unable or unwilling to discharge her parental responsibilities to and for the children. Compare Odom v. State Dep’t of Human Res., 562 So.2d 522, 523-24 (Ala.Civ.App.1990) (affirming the trial court’s judgment denying the mother’s petition for a return of the custody of her children when the evidence demonstrated, among other things, that the mother intended to continue a relationship with her husband, who had allegedly sexually abused her children); Swain v. State ex rel. Alabama Dep’t of Pensions & Sec., 495 So.2d 1136, 1137 (Ala.Civ.App.1986) (affirming the trial court’s judgment that the child was dependent and awarding temporary custody to the Department of Pensions and Security based, in part, on evidence demonstrating that the mother’s paramour had physically abused the child and the mother had failed to protect the child from that abuse).

The mother next argues that the juvenile court erred in terminating her parental rights because, she alleges, the record does not contain sufficient evidence demonstrating that DHR used reasonable efforts toward rehabilitating the mother.

“This court has held that, in most cases, ‘DHR has the duty to make reasonable efforts to rehabilitate the [parent] so that family reunification might be attainable.’ C.B. v. State Dep’t of Human Res., 782 So.2d 781, 785 (Ala.Civ.App.1998).” J.P. v. S.S., 989 So.2d 591, 601 (Ala.Civ.App.2007). However, the record supports a conclusion that DHR made reasonable efforts to reunite the mother with the children and that the mother failed to make sufficient progress. The mother testified that she had complied with every request made by DHR; however, Oakley testified that the mother had not met certain requirements of the ISPs and that the mother had not demonstrated sufficient stability in her housing and employment that would allow reunification. Oakley testified that she had informed the mother that she “needed a stable environment” before the children could be returned to her custody. Oakley also testified that the mother had resided in several locations since DHR had taken custody of the children and that there had been times, including the period immediately preceding the hearing, when she had no knowledge of the mother’s living arrangements. The mother confirmed Oakley’s testimony by testifying that she had made no efforts to inform DHR of her most recent change in address, which had occurred on July 27, 2007.

Additionally, Oakley testified that DHR had set a goal for the mother to obtain and maintain employment. Although the mother had recently become employed on .March 13, 2007, Oakley testified that the mother had obtained employment only after “child support was pursued,” and the mother’s testimony demonstrates that she had been unemployed for the majority of the two years that the children had been in DHR’s custody. Oakley also testified that the mother had been “offered services but we were not in the position to reunify.” The juvenile court received evidence indicating that the mother, due to her lack of stable housing and employment, was still unable at the time of the hearing to provide a stable environment for the children. Furthermore, the evidence indicates that the mother’s progress toward achieving the goals for reunification was nothing more than the result of “last-minute efforts.” Therefore, the juvenile court could have concluded that DHR made reasonable efforts to reunite the mother with the children. See J.D. v. Cherokee County Dep’t of Human Res., 858 So.2d 274, 277 (Ala.Civ.App.2003) (affirming the trial court’s judgment terminating parental rights and noting that the mother’s progress towards reaching her reunification goals was the result of last-minute efforts).

Finally, the mother argues that there was not clear and convincing evidence supporting the juvenile court’s determination that no viable alternatives existed to termination of her parental rights. Specifically, the mother argues that the juvenile court erred in finding that awarding custody to the maternal grandmother was not a viable alternative to termination of her parental rights. We disagree with this argument as well.

The undisputed evidence before the juvenile court demonstrated that the maternal grandmother and her husband, at the time of the hearing, were unemployed and subsisted on an income of approximately $1,200 per month. The evidence also demonstrated that the maternal grandmother’s husband has emphysema and at times requires the use of an oxygen tank. The evidence further demonstrated that the maternal grandmother’s two teenaged children and her 15-month-old grandson were already residing with her and that she was living in a two-bedroom house, although she alleged that she had access to a four-bedroom house in which she had previously resided. Additionally, the juvenile court received evidence indicating that the maternal grandmother’s teenaged children had been getting into trouble and that the introduction into her house of four additional children, including one with severe disabilities, would be more than she could handle. Considering all these factors, we conclude that the juvenile court’s determination that awarding custody to the maternal grandmother was not a viable alternative to termination is supported by clear and convincing evidence. See M.H.J. v. State Dep’t of Human Res., 785 So.2d 372, 376 (Ala.Civ.App.2000) (affirming the trial court’s determination that awarding custody to the children’s grandmother was not a viable alternative to termination of parental rights based, in part, on her “minimal income, the crowded living conditions that would exist if custody of the children were awarded to her, and her own health problems”).

Based upon the record on appeal, we conclude that the juvenile court’s judgment terminating the parental rights of the mother is supported by clear and convincing evidence and is not plainly and palpably wrong. Thus, the juvenile court’s judgment terminating the parental rights of the mother is affirmed.

AFFIRMED.

THOMPSON, P.J., and PITTMAN and THOMAS, JJ., concur.

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

I respectfully dissent because I conclude that, under the facts of this case, termination of the mother’s parental rights was improper.

In this case, the trial court found as grounds for the termination that the mother was unable or unwilling to discharge her parental responsibilities to and for the children, that the mother had not been able to provide for the physical, emotional, and financial needs of the children, and that the mother had not been willing or able to provide a stable home for the children. However, the record in this case contains no indication that the mother had ever abandoned her children or that the mother had suffered or was suffering from any identified emotional illness or mental deficiency or that she had used or was using alcohol or controlled substances to the point that would render her unable to care for her children. There is no indication in the record that the mother had ever been convicted of any crime or that the mother’s parental rights to any other child had been involuntarily terminated. Thus, the record contains absolutely no evidence to support a termination of the mother’s parental rights based on those factors set forth in § 26-18-7(a)(1), (2), (4), (7), and (8), Ala.Code 1975.

The record in this case also fails to establish by clear and convincing evidence that termination of the mother’s parental rights was proper under the grounds set forth in § 26 — 18—7(a)(3) (“That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.”) or under § 26-18-7(a)(5) (“Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.”). The record does not establish by clear and convincing evidence that T.Ny.A.A. had been abused by the mother or that she had been injured under such circumstances as would indicate that T.Ny.A.A.’s injuries had resulted from the mother’s intentional or willful neglect. The only testimony offered on this issue indicates that T.Ny.A.A. was alone with F.A. at the time she received her injuries. The mother blamed F.A. for the child’s injuries, and she claimed that, when questioned, F.A. had been evasive in his explanation of the events surrounding the injuries. It is undisputed that F.A. had a history of domestic violence against the mother. Additionally, there is no evidence indicating that the mother had a history of any abuse against F.A. or against her children.

The record also contains no evidence indicating that the mother neglected T.Ny. A.A. or attempted to hide her injuries after learning of those injuries. Before the child’s injuries occurred in August 2005, the mother had been taking the child to the doctor for treatment of skin and breathing issues, and, upon discovery of the child’s injuries in August 2005, the mother immediately took the child to the hospital.

Moreover, DHR found no evidence indicating that the mother’s other three children had ever been physically abused by either the mother or F.A. For all that appears in the record, the mother had no reason to know that, by leaving child with F.A. that night, she would be placing the child at risk of harm. Because the evidence tends to indicate that the mother was not involved in causing the child’s injuries and that the child’s injuries were not the result of the mother’s willful neglect, it does not support the termination of the mother’s parental rights.

Moreover, because the children were not in the physical custody of the mother, those factors set forth in § 26-18-7(b) were also relevant to DHR’s termination petitions. The evidence presented at the termination hearing establishes by clear and convincing evidence that the mother paid child support as requested by DHR; thus, she provided for the material needs of the children while they were in foster care. See § 26 — 18—7(b)(1). The evidence also established that the mother did not miss a single visit with the children in two years and that, during that two-year period, she maintained consistent contact and communication with the children. See § 26 — 18—7(b)(2) and (3). Finally, the evidence established that, as requested by DHR, the mother obtained employment, paid child support, and attended parenting classes. In addition, the mother eventually obtained housing. This evidence indicates that the mother adjusted her circumstances to meet the needs of her children in accordance with the agreements reached with DHR. See § 26-18-7(b).

I do not intend to suggest that, if DHR fails to adduce clear and convincing evidence of the statutory factors set out in § 26-18-7, the juvenile court may not ter-mínate parental rights. By stating that “the court shall consider, ... but not be limited to” the statutory factors, the statute itself indicates that a juvenile court may terminate parental rights if other factors, proven by clear and convincing evidence, establish one of the alternative grounds for termination of a parent’s parental rights. See Miller v. Alabama Dep’t of Pensions & Sec., 374 So.2d 1370 (Ala.Civ.App.1979). However, in this case, I conclude that DHR did not present clear and convincing evidence of any other factor justifying termination of the mother’s parental rights.

DHR criticized the mother for failing to follow through with psychological counseling. I note that the evidence is disputed as to whether DHR ever communicated to the mother a need for a psychological evaluation or for counseling. In any case, the mother voluntarily sought counseling on her own. However, even then, DHR did not present evidence as to any psychological issues identified in that counseling session or any recommendation made by that counselor for further treatment. As a result, the record is totally devoid of any evidence indicating that the mother suffered from some psychological condition that interfered with her parenting abilities. The record also contains no evidence indicating that the mother needed counseling to effectively parent her children or that her failure to complete a counseling course prevented her from safely resuming her parental responsibilities. In the absence of such evidence, the juvenile court could not have reasonably terminated the mother’s parental rights based on her failure to follow through with counseling.

DHR also criticized the mother for failing to obtain stable housing. The evidence was undisputed that, at the time of the termination hearing, the mother had obtained her own housing. Before that time, the mother had resided with her nephew and the children’s maternal grandmother because she could not afford her own housing. Poverty alone is not enough to warrant the termination of parental rights. C.B. v. State Dep’t of Human Res., 782 So.2d 781 (Ala.Civ.App.1998); and A.J.H.T. v. K.O.H., 983 So.2d 394, 406 (Ala.Civ.App.2007). See also In re Hickman, 489 So.2d 601, 602-03 (Ala.Civ.App.1986) (stating that “[pjoverty and limited mentality of a mother, in the absence of abuse or lack of caring, should not be the criteria for taking away a wanted child from the parents” (quoted in Bowman v. State Dep’t of Human Res., 534 So.2d 304, 306 (Ala.Civ.App.1988), and D.A. v. Calhoun County Dep’t of Human Res., 892 So.2d 963, 968 (Ala.Civ.App.2004))); and K.M. v. Shelby County Dep’t of Human Res., 628 So.2d 812, 813 (Ala.Civ.App. 1993). Moreover, once DHR identified the mother’s lack of income or the mother’s lack of stable housing as an obstacle to reunification of the family, it had a duty to use reasonable efforts to help the mother overcome those obstacles. See H.H. v. Baldwin County Dep’t of Human Res., 989 So.2d 1094, 1105 (Ala.Civ.App.2008) (plurality opinion). However, the record contains no evidence indicating that DHR did anything to assist the mother in obtaining suitable employment or suitable housing. Because of the lack of reasonable effort on the part of DHR to assist the mother with her housing and income problems, the juvenile court could not terminate the mother’s parental rights based on those factors. See H.H., supra.

Finally, DHR criticized the mother for apparently continuing a relationship with F.A. after the children were removed from her custody, even though that relationship involved domestic violence. If DHR had identified domestic violence or the mother’s propensity to remain in abusive relationships as an obstacle to the mother’s regaining custody of her children, DHR should have offered the mother services aimed at resolving those issues. H.H., supra. However, DHR did not specifically offer the mother any programs aimed at ending those problems; this failure violated DHR’s statutory duty. See § 12-15-65(g)(3), Ala.Code 1975; J.B. v. Jefferson County Dep’t of Human Res., 869 So.2d at 481; D.S.S. v. Clay County Dep’t of Human Res., 755 So.2d 584, 589 (Ala.Civ.App.1999); and C.B. v. State Dep’t of Human Res., 782 So.2d at 785. Despite the lack of assistance, the mother testified at the hearing that she was no longer involved with F.A. and that she would seek a protection order or call the police if F.A. came around her or the children.

Although DHR utterly failed to address the problems it identified at trial as barriers to family reunification, by the time of the termination hearing the mother had shown significant progress in rehabilitating herself. She had maintained employment, had regularly paid child support, had located housing, and had extricated herself from an abusive relationship. In similar situations, this court has concluded that a judgment terminating parental rights must be reversed. See, e.g., V.M. v. State Dep’t of Human Res., 710 So.2d 915 (Ala.Civ.App.1998); R.F. v. State Dep’t of Human Res., 740 So.2d 1093 (Ala.Civ.App.1999); D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 439 (Ala.Civ.App.2003); and P.H. v. Madison County Dep’t of Human Res., 937 So.2d 525 (Ala.Civ.App.2006).

The State may not terminate a parent’s parental rights unless that parent is unable or unwilling to discharge his or her parental responsibilities to and for the child or unless the conduct or condition of the parent is such as to render him or her unable to properly care for the child and that conduct or condition is unlikely to change in the foreseeable future. § 26-18-7(a). In this case, I find no clear and convincing evidence of a condition or conduct on the part of the mother that prohibits return of the children to her custody. Additionally, I find no clear and convincing evidence indicating that the mother is unwilling or unable to discharge her responsibilities to and for the children. I would, therefore, reverse the juvenile court’s judgment.

      . F.A. was determined to be the father of each of the children except T.Ny.G. F.A.’s parental rights were terminated as to T.Ny.A.A., T.K.L.A., and T.N.A. F.A. is not a party to this appeal.

      . The hearing was originally scheduled for August 14, 2007; however, the juvenile court continued the hearing until September 19, 2007, because F.A. appeared at the hearing without counsel and DHR requested that the juvenile court appoint counsel for F.A. before hearing its petition to terminate his parental rights.

      . The maternal grandmother and the maternal aunt filed their petitions for custody of the children on August 14, 2007, more than two years after the children had been placed into foster care by DHR.

      . The maternal aunt appeared before the juvenile court on August 14, 2007, the date that DHR's petitions were originally scheduled to be heard; however, the maternal aunt did not appear at the September 19, 2007, hearing.

      . The record does not definitely establish the location at which F.A. was caring for the children that evening. The mother’s testimony appears to indicate that she left the children with F.A. at the maternal grandmother's house on the evening that T.Ny.A.A. was injured.

      . F.A. was incarcerated at the time of the hearing on September 19, 2007. F.A. testified at the abbreviated August 14, 2007, hearing that he was in jail for "[fjake names and warrants, child support.”

      . The mother allegedly was employed by "Motel 6” as a housekeeper, working from 10:00 a.m. until her housekeeping duties were completed. The mother later testified that she had a second job working at a factory from 3:00 p.m. until 11:00 p.m.

      .Neither the August 11, 2005, ISP nor any of the other ISPs that DHR implemented with the mother are contained in the record.

      . Upon his birth, F.A., Jr., was removed from the mother's custody and placed in the custody of the maternal grandmother. The mother's parental rights regarding F.A., Jr., were not at issue in this action.

      . The record does not clearly indicate the source of their income.

      . As noted in the main opinion, the record contains none of the individualized service plans created by DHR for the mother. The mother, however, produced at the hearing one of the individualized service plans created for her by DHR. According to the trial testimony, that individualized service plan made no mention of any counseling requirement.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    T.B. v. CULLMAN COUNTY DEPARTMENT OF HUMAN RESOURCES. M.B.S. v. Cullman County Department of Human Resources.
    2070626 and 2070629.
    Court of Civil Appeals of Alabama.
    Sept. 12, 2008.

      Jeremy A. Hancock, Cullman, for appellant T.B.
    Rhonda D. Bruner, Cullman, for appellant M.B.S.
    Troy King, atty. gen., and Sharon E. Ficquette, asst. atty. gen. and gen. counsel, and Felicia M. Brooks, asst. atty. gen., for appellee Department of Human Resources.
    Sharon H. Barrett of Smith & Smith, LLP, Cullman, guardian ad litem.
   MOORE, Judge.

In case no. 2070626, T.B. (“the mother”) appeals from a judgment entered by the Cullman Juvenile Court on March 7, 2008, terminating her parental rights to her three children, S.C.B., A.D.B., and A.S.B. That appeal has been consolidated with case no. 2070629, in which M.B.S. (“the paternal grandmother”) appeals from the same judgment, which denied her petition for custody of the children.

In its judgment, the juvenile court made the following findings:

“1. That the ... children are under the age of eighteen years and under the jurisdiction of this Court. [S.C.B. and A.D.B.] have been in the legal custody of [the Cullman County Department of Human Resources (hereinafter ‘DHR’) ] for nearly three years and [A.S.B.] has been in the custody of [DHR] for over nearly twenty-one months. The Court finds that [A.D.B. and A.S.B.] have a history of Asthma and will need continued administration of medication for their condition by a suitable caretaker.
“2. That the children are in need of the care and protection of the State of Alabama Department of Human Resources and that it is in their best interest for the parental rights of the mother and the father to be terminated so that the children can be placed for adoption and that the Department is equipped to care for and has agreed to receive the children upon commitment by final Order of this Court and seek adoptive placement.
“3. That aforesaid children have a history of neglect and/or abuse in the home of their parents. The Court finds that [the mother] is not able to meet the special needs of the children due to her mental limitations and [is] unable to provide the stability needed due to her lack of stable housing, failure to adhere fully to the provisions of the Individualized Service Plans, economic instability, and past involvement in a relationship with her husband, ... in which domestic violence is evident, but yet she has not ceased all contact with her husband.
“5. That clear and convincing evidence has been established that the aforesaid children are dependent and that the mother and the father of the children are unable or unwilling to discharge their responsibilities to meet the needs of the children at this time, and it is unlikely in the foreseeable future that they can provide a fit and suitable home for the children. [DHR] has made reasonable efforts toward rehabilitation of the parents, and such efforts have been unsuccessful.
“6. That [DHR] has investigated all viable alternatives to termination of parental rights, and the Court finds that there exists no other viable alternative consistent with the best interest of the children other than termination of parental rights.
“7. The Court finds that the children are in need of permanency.”

Based on those findings, the juvenile court terminated the parental rights of the mother, denied a petition for custody filed by the mother on May 1, 2007, and denied a petition for custody filed by the paternal grandmother on August 9, 2007.

Issues

In case no. 2070626, the mother generally argues that the evidence is insufficient to support a termination of her parental rights. More specifically, the mother takes issue with the juvenile court’s findings that reasonable efforts to rehabilitate the mother had failed, that the mother had not adjusted her circumstances to meet the needs of the children, and that the mother’s mental problems prevent her from properly parenting the children. The mother maintains that the evidence showed that, at the time of trial, she was able to discharge her parental responsibilities to and for the children.

In case no. 2070629, the paternal grandmother argues that the juvenile court erred in admitting hearsay evidence regarding her custody petition and further erred in denying her petition. As to the first point, the paternal grandmother specifically argues that the juvenile court erroneously allowed a witness for the Cullman County Department of Human Resources (“DHR”) to testify to the contents of reports and records reviewed by DHR in assessing the paternal grandmother’s fitness to take custody of the children. As to the second point, the paternal grandmother maintains that the juvenile court failed to make findings of fact regarding her custody petition and denied her petition although there was no evidence indicating that she was unsuitable to assume custody of the children and although there was no testimony that reasonable efforts were made to place the children with her.

Case No. 2070626

Generally speaking, when a child is removed from the parental home, DHR has a duty to use reasonable efforts to reunite the family. See Ala.Code 1975, § 12-15-65(g)(3) & (m), and J.B. v. Jefferson County Dep’t of Human Res., 869 So.2d 475, 481 (Ala.Civ.App.2003). Absent aggravating circumstances, see Ala.Code 1975, § 12-15-65(m), if a parent’s conditions, circumstances, or conduct interferes with the goal of reunification, DHR is required to use reasonable efforts to rehabilitate the parent and remove those barriers. C.B. v. State Dep’t of Human Res., 782 So.2d 781, 785 (Ala.Civ.App.1998) (“DHR has the duty to make reasonable efforts to rehabilitate [a parent] so that family reunification might be attainable.”). In making the sensitive decision whether to terminate parental rights, a juvenile court shall consider “[t]hat reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.” Ala.Code 1975, § 26-18 — 7(a)(6). Furthermore, when a child is not in the physical custody of the parent, the juvenile court shall consider “[l]ack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached ... with local departments of human resources ... in an administrative review or a judicial review.” Ala.Code 1975, § 26 — 18—7(b)(4).

In this case, the mother does not argue that DHR failed to use reasonable efforts to rehabilitate her and to reunite her with the children. See H.H. v. Baldwin County Dep’t of Human Res., 989 So.2d 1094, 1098 (Ala.Civ.App.2008) (main opinion authored by Moore, J., with Thompson, P.J., and Bryan, J., concurring in the result). Instead, she argues that those efforts succeeded. Like the question of whether DHR’s reunification efforts were reasonable, the question whether reasonable efforts to rehabilitate a parent have succeeded so that the family can be reunited is a question of fact for the juvenile court. Id.; see also J.B., 869 So.2d at 482. In making that determination, the juvenile court must first identify the parental conduct, circumstances, or condition that led to the removal of the children and prevented them return to the custody of the parent. H.H., supra. The juvenile court must then consider the efforts expended by the parent in overcoming those problems and the progress the parent has made in eliminating or reducing those problems, so that they no longer constitute a barrier to reunification. Id.

At trial, DHR bore the burden of proving that reasonable reunification efforts had failed. J.B. v. Cleburne County Dep’t of Human Res., 992 So.2d 34, 50 (Ala.Civ.App.2008) (Moore, J., dissenting) (citing In re D.B., 339 Mont. 240, 246, 168 P.3d 691, 696 (2007) (citing § 41-3-609(1)(f), Mont.Code Ann.); Division of Family Serv. v. N.X., 802 A.2d 325 (Del.Fam.Ct.2002); In re Michael G., 63 Cal.App.4th 700, 74 Cal.Rptr.2d 642 (1998); and In re Savanna M., 55 Conn.App. 807, 740 A.2d 484 (1999) (citing Conn. Gen.Stat. § 17a-112(c)(1))). By statute, DHR was required to prove that fact by “clear and convincing evidence.” Ala.Code 1975, § 26-18-7(a). “Clear and convincing evidence” is “ ‘[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala.Code 1975, § 6-11-20(b)(4)). On appeal “this court is ‘required to apply a presumption of correctness to the trial court’s finding[s]’ when the trial court bases its decision on conflicting ore tenus evidence.” J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007) (quoting Ex parte State Dep’t of Human Res., 834 So.2d 117, 122 (Ala.2002)). We can only reverse a judgment based on a particular finding of fact in a termination-of-parental-rights case if that finding is unsupported by clear and convincing evidence so as to be plainly and palpably wrong. J.B. v. Cleburne County Dep’t of Human Res., 991 So.2d 273, 282 (Ala.Civ.App.2008) (citing J.C., supra).

The evidence in the record shows that in 2002, within months of the October 11, 2002, birth of S.C.B., the oldest child, DHR found the family living in a mobile home with structural, cleanliness, and other problems rendering it an improper shelter. DHR closed its case after the parents moved into the father’s sister’s house. In January 2005, following the July 6, 2004, birth of the A.D.B., the second child, DHR discovered that the family had moved back into the same mobile home, which had deteriorated into an even more unliveable condition. DHR placed the family in a hotel at that time and then moved them back into the father’s sister’s house on a temporary basis.

In February 2005, the mother accused the father of sexual and physical abuse and fled with the children to a domestic-violence shelter. The mother obtained a protection-from-abuse order against the father. While in that shelter, the mother was overheard screaming and cursing at the children and was observed biting S.C.B. on the right arm. When DHR investigated, it found that A.D.B. had bruises on her forehead. DHR filed a report finding that the mother had committed child abuse; DHR removed the children from the mother’s custody on February 23, 2005.

Following the removal of the children, the mother submitted to psychological testing, which revealed that she had an IQ of 85, placing her in the low average-intelligence range, and that she had an anxiety disorder. The psychologist who performed the evaluation recommended individualized psychotherapy to help the mother cope with stress-inducing events and interpersonal encounters, a parenting program to teach the mother to more positively rear the children, GED classes, and possibly job training.

The mother originally attended therapy and GED and parenting classes in 2005. The mother passed a parenting class in July 2005; however, she failed to complete the GED classes. The mother testified that she did not recall DHR referring her to an entity referred to in the record as Adult Vocational Rehabilitation, but one of DHR’s witnesses testified that the mother had failed to follow up with a referral to that entity. During therapy, the mother expressed her belief that she should not be working, but should stay at home to care for the children. Accordingly, she had no motivation to obtain or implement job skills.

The mother gave birth to A.S.B., her third child, on July 6, 2005. After that child’s birth, the mother resided with her grandmother and DHR monitored the child. Six months after the birth of A.S.B., the mother started in-home counseling with Dr. Jewel Euto for issues relating to her anxiety, depression, and identification of mental-health barriers to her reunification with the older children. During those sessions, Dr. Euto not only observed the mother, but also observed the conditions of the apartment in which the mother lived and her interaction with A.S.B. Dr. Euto believed the mother was mildly mentally retarded, as demonstrated by her inability to learn and retain simple information like how to keep medical appointments and how to clean and use baby bottles. Dr. Euto also found that the mother was having a hard time bonding with A.S.B. and that the mother could only parent the child with daily assistance from others, such as the mother’s grandmother. The mother did not abuse the child, but she was neglectful of the child’s needs. Dr. Euto opined that the mother seemed to have no motivation to improve her parenting skills and that she could not independently raise a child.

In May 2006, DHR removed A.S.B. from the custody of the mother. A DHR representative discovered that the father, who had been separated from the family since early 2005, apparently had resumed living with the family in violation of an earlier agreement DHR had reached with the mother. The DHR representative also discovered that there was no baby food in the apartment and that A.S.B. appeared malnourished. -The child had bruises on his forehead, and, in addition, cereal was laying on the floors and on the child’s bed. The mother indicated that she may have fallen asleep while feeding the child. An entity referred to in the record as Family Values had been assisting the mother in the home and had reported many problems with the mother’s lack of parenting skills.

Within three months of the removal of A.S.B., the mother lost her apartment and was living with the paternal grandmother. During that time, the mother, who had been diagnosed as a schizophrenic in early 2006, began having hallucinations in which she had sex with demons and purple dogs told her to kill the DHR workers. The paternal grandmother filed a petition to involuntarily commit the mother in August 2006; that petition was denied in September 2006 based on evidence that the mother’s mental condition had stabilized after being placed on proper medication.

In late 2006, the mother moved in with J.B., the father’s adoptive father (“the paternal grandfather”). The mother has lived with the paternal grandfather since that time. At the time of trial, the mother and the paternal grandfather lived in a three-bedroom apartment in a government housing project in Blountsville, their third home since they started living together. The paternal grandfather, who is 73 years old, pays all of the mother’s bills, except the mother contributes to the groceries with her food stamps. The mother does not work; she did, however, apply for Social Security disability benefits in August 2006 on account of her psychiatric condition.

The mother consistently visited the children at DHR’s offices under the supervision of Family Values. Records from those visits show that the mother often failed to interact with the children, never displayed appropriate parental guidance over the children, and depended on the caseworkers and supervisors to protect and discipline the children during visitations. In late 2007, after the mother had established her most recent residence, the children were allowed to visit with the mother at her apartment. During one of those visits, one of the children was left unattended in front of the apartment. On another visit, the mother, who has a neurological condition that affects her hands, lost her grip on the youngest child and he darted across the street. Even uneventful visitations were marred by the mother’s inability to control the behavior of the children and to perform simple parenting tasks without prompting or assistance from others.

Based on the foregoing, and other evidence, DHR identified numerous problems preventing the mother from reuniting with the children, including: inadequate and unstable housing, domestic violence, improper discipline and parenting techniques, mental deficiencies, lack of income, and psychiatric problems.

As the mother correctly points out, she overcame some of those problems. By the time of the trial, the mother had adequate housing, which DHR had approved through a home study. The mother’s psychiatric problems were being controlled by medication, as testified to by Dr. Euto. Although she was still legally married to the father, the mother was no longer in a relationship with him; the father was living with and had started a family with another woman a year before trial. Additionally, the mother had received training-on how to recognize and deal with the younger children’s asthma problems.

However, the mother remained totally financially dependent on the paternal grandfather, without any plan for meeting the children’s financial needs should he leave or die. The mother had no income of her own and testified that the only income she anticipated receiving was Social Security disability benefits, which she had been waiting to receive for over 18 months. The evidence did not reveal whether those benefits would be sufficient to meet the financial needs of three young children.

More importantly, despite extensive rehabilitation efforts, the mother had yet to display the ability to independently and properly care for the children. All the expert testimony and evidence in the case, and a great deal of the evidence from lay witnesses, indicated that the mother, either due to her mental limitations or lack of motivation, could not properly parent the children without full-time assistance from others. One DHR witness testified that the mother had made it through only 1 of 14 books designed to train her how to properly parent the children and that it would take the mother 3 more years to complete her training.

“At some point, ... the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent.” M.W. v. Houston County Dep’t of Human Res., 773 So.2d 484, 487 (Ala.Civ.App.2000). In the absence of exceptional circumstances, a parent’s efforts at rehabilitation should not extend beyond 12 months from the date the child enters foster care because our legislature has established that period as the presumptively reasonable time for conducting reunification efforts. M.A.J. v. S.F., 994 So.2d 280, 291 (Ala.Civ.App.2008). In this case, the mother had yet to successfully demonstrate basic parenting skills well after the one-year period had been exhausted. Moreover, the record does not indicate any exceptional circumstances that would warrant extending the rehabilitation period. This is not a case in which, at the time of the trial, the mother was so close to complete rehabilitation that the interests of the children in permanency and stability would be served by granting her additional time to fulfill her parental responsibilities.

The mother argues that even if she is not completely rehabilitated and requires help to parent the children, her parental rights should not be terminated because the paternal grandfather has a vested interest in the children and is available to give her the full-time assistance she needs. Putting aside his advanced age, DHR rejected the paternal grandfather as a placement resource for the children for good reasons. DHR received information, much of which was verified at trial, indicating that the paternal grandfather had abused and neglected his stepchildren and the father when he was a minor. Family Values documented the paternal grandfather’s visits with the children, during which he expressed that the children should be allowed to fight with one another to resolve their problems and during which he failed to protect and properly care for the children. Moreover, the paternal grandfather indicated in the home study that he intended the mother to be the primary caretaker for the children because he had not parented young children in many years and he felt she would know more about it. Finally, we note that the parental-rights-termination statute allows a juvenile court to terminate parental rights when the parent is unable to discharge his or her responsibilities to and for the child. Regardless of whether the paternal grandfather can assume a proper parental role, the fact remains that the mother is still unable to properly parent the children.

We recognize that the evidence regarding the extent of the mother’s progress was in conflict; however, the resolution of that conflict was for the juvenile court. See J.C., supra. Clear and convincing evidence supports the juvenile court’s determination that reasonable efforts leading toward the rehabilitation of the mother had failed and that the mother was not in a position to safely reunite with the children.

For the foregoing reasons, we affirm the judgment of the juvenile court terminating the mother’s parental rights.

Case No. 2070629

The paternal grandmother’s petition for custody was heard together with DHR’s petition to terminate the mother’s parental rights. “[A] parental-rights-termination hearing is an adjudicatory proceeding at which hearsay evidence is inadmissible.” Ex parte J.R., 896 So.2d 416, 428 (Ala.2004). On the other hand, a hearing to determine the custody of a dependent child is a disposition hearing. J.L. v. State Dep’t of Human Res., 688 So.2d 868, 870-71 (Ala.Civ.App.1997).

“In disposition hearings all relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value, even though not competent in a hearing on the petition. The parties or them counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making reports.”

Ala.Code 1975, § 12-15-65(h).

In cases in which dependent children have been committed to foster care, the juvenile court should decide the fitness of potential relative placements no later than at the 12-month permanency hearing and should avoid resolving petitions to terminate parental rights with petitions for custody of the children. See Ala.Code 1975, § 12-15-62(c), and A.D.B.H. v. Houston County Dep’t of Human Res., 1 So.3d 53, 68 (Ala.Civ.App.2008) (Moore, J., concurring in part and concurring in the result). In addition to other problems, by trying the adjudicatory and dispositional phases together, confusion arises as to the admissibility of evidence, with the proper resolution depending on whether the evidence pertains to the grounds for terminating parental rights or relates merely to the disposition of the child following termination. Nevertheless, Rule 25(A), Ala. R. Juv. P., specifically allows juvenile courts to simultaneously hear all phases of a case at once. In so doing, a juvenile court may accept inadmissible evidence so long as it relates solely to custodial dispositions of the child.

In this case, the paternal grandmother argues that the juvenile court erred in allowing one of DHR’s witnesses to testify as to the results of its study of her fitness and qualifications to receive and care for the children. See Ala.Code 1975, § 12-15-71(a)(3)c. The record shows that testimony was offered purely on the issue whether the paternal grandmother would be a proper custodian for the children, an issue in the dispositional phase of the case. Therefore, the juvenile court did not err in allowing the testimony over the objection of the paternal grandmother. Because the paternal grandmother does not argue that she was deprived of an “opportunity to examine and controvert written reports so received and to cross-examine individuals making reports,” § 12-15-65(h), we find no basis for reversing the juvenile court’s judgment. J.L., 688 So.2d at 871.

In its final judgment the juvenile court did not make extensive findings regarding its reasons for denying the paternal grandmother’s petition for custody, but it did state that it had found no other viable alternative to terminating the parental rights of the mother. One of the “viable alternatives” to termination of parental rights as set out in the parental-rights-termination statute is placement of the child with a fit and willing relative qualified to receive and care for the child when that placement serves the best interests of the child. See Ala.Code 1975, § 12-16-62(c) & § 12-15-71(a)(3)c. Thus, by finding no viable alternatives, the juvenile court implicitly found either that placement of the children with the paternal grandmother was not in their best interests or that the paternal grandmother was not a fit and willing relative qualified to receive and care for the children. We conclude that either finding is supported by the evidence.

The paternal grandmother is married and lives in Blountsville in a two-bedroom house with her husband of three years. She works 10 hours a day at a restaurant, and her husband works at night. She denied any physical or mental-health problems. She has maintained a relationship with the children, having occasionally visited with them, along with the father, while they were in DHR’s custody. She has raised five children of her own and babysits for her other grandchildren.

Despite these general qualifications, DHR would not approve the paternal grandmother as a placement resource for the children when it conducted its home study of her in 2006. The paternal grandmother had been cited by DHR in the past for neglecting her own children. The reports indicated that her children showed up for school filthy and malodorous. The paternal grandmother had a criminal history that included interfering with the custody of a child, tampering with evidence, contributing to the delinquency of a child, and failing to send a child to school. Some evidence also indicated that the paternal grandmother had been guilty of kidnapping a child. Although these incidents were somewhat remote in time, they still evidence the character of the paternal grandmother and clearly and convincingly prove that she was not fit and qualified to receive and care for the children.

The evidence further showed that, when she visited with the children, the paternal grandmother sometimes acted inappropriately around them and would interact with the children for only brief periods and leave before the end of the visitation period. The record further shows that the paternal grandmother visited with the children less often as the case progressed. In addition, the paternal grandmother indicated that she would allow the father, whose parental rights have now been irrevocably terminated, to spend time with the children while in her care. When coupled with the other evidence regarding the paternal grandmother’s unfitness, the juvenile court had before it more than ample evidence to conclude that awarding custody to the paternal grandmother would not be in the best interests of the children.

Finally, we reject the paternal grandmother’s last argument that DHR failed to use reasonable efforts to place the children with her. By statute, DHR has a duty to use reasonable efforts “to place the child and to complete whatever steps are necessary to finalize the permanent placement of the child.” Ala.Code 1975, § 12-15-65(m). However, DHR has no duty to make reasonable efforts to attempt to place children with an unfit relative; nor does DHR have a duty to provide services to a potential relative placement in order to improve that relative’s qualifications to receive and care for the children, see J.B. v. Cleburne County Dep’t of Human Res., 991 So.2d at 284. On the other hand, DHR does have a duty to perform a study of relatives seeking custody of dependent children. See Ala.Code 1975, § 12-15-71(a)(3)c. In this case, DHR performed that duty in a reasonable manner. As a result of that study, DHR reasonably excluded the paternal grandmother as a potential placement for the children. DHR properly discharged its burden of assessing the paternal grandmother and proving her unsuitability to obtain custody of the children. See Ex parte J.R., supra.

For the foregoing reasons, we affirm the judgment of the juvenile court denying the paternal grandmother’s petition for custody.

2070626 — AFFIRMED.

2070629 — AFFIRMED.

THOMPSON, P.J., and BRYAN, J., concur.

PITTMAN, J., concurs in the result, without writing.

THOMAS, J., recuses herself.

      . The juvenile court also terminated the parental rights of the father. He did not appeal that judgment.

      . In her brief, the paternal grandmother argues that the juvenile court erroneously terminated the mother’s parental rights despite evidence indicating that placement with her would be a viable alternative. As we recently held in B.H. v. Marion County Department of Human Resources, 998 So.2d 475 (Ala.Civ.App.2008), a relative has no standing to appeal the termination of a parent's parental rights. Hence, we do not address that argument but, rather, concentrate solely on the issue for which the paternal grandmother does have standing — whether the juvenile court properly denied her custody petition. Id.

      . The paternal grandmother argues that the clear-and-convincing-evidence standard applies to the factual questions regarding her petition for custody. DHR does not dispute that contention. Therefore, we analyze the evidence to see if it is "clear and convincing,” without making any determination as to the appropriateness of that standard.