author: DONALDSON, Judge.

text:
    ALABAMA DEPARTMENT OF PUBLIC HEALTH v. Su Won LEE d/b/a First Avenue Meat and Fish Market
    2160139
    Court of Civil Appeals of Alabama.
    April 7, 2017
    Dillon K. Bullard, asst. atty. gen. Alabama Department of Public Health, for appellant.
    Diandra S. Debrosse of Zarzaur Mujumdar & Debrosse, Birmingham, for appellee.
   DONALDSON, Judge.

The Alabama Department of Public Health ("the Department") appeals from a judgment of the Montgomery Circuit Court reversing the decision of the State Health Officer to disqualify First Avenue Meat and Fish Market ("First Avenue"), a grocery store owned by Su Won Lee ("Mr. Lee"), from participating for three years as an authorized vendor in the Alabama Women, Infants, and Children program ("the WIC program"). We reverse the judgment of the circuit court.

Factual Background and Procedural History

We have previously provided an explanation of the WIC program in a related case.

"The United States Congress created the WIC program in 1966 primarily to provide supplemental dietary and nutritional aid to low-income pregnant, breast-feeding, and non-breast-feeding postpartum women and to infants and children up to age five who are found to be at nutritional risk. See 42 U.S.C. § 1786(a). The United States Department of Agriculture ('USDA') issues cash grants to the various states to administer the WIC program. See generally 42 U.S.C. § 1786(c)(2) ;
7 C.F.R. § 246.1. The USDA requires appropriate state agencies to use a portion of those cash grants to deliver approved supplemental foods and nutritional aid to eligible participants. 42 U.S.C. § 1786(f)(11).
"The Department administers the WIC program for the State of Alabama. See Ala. Code 1975, § 22-12C-1 et seq. The Department has adopted a food-delivery system by which it issues 'food instruments' to eligible participants that can be redeemed at authorized retail vendors for approved supplemental foods. See Ala. Admin. Code (Dep't of Public Health), Rule 420-10-2-.05(1). The food instruments designate specific types and quantities of food items that the participant may purchase, i.e., 'one gallon of whole milk.' The participant obtains the described food items at retail stores operated by an authorized WIC vendor and tenders the food instrument as a form of payment for the food items. To accept the food instrument, the vendor stamps the food instrument with the vendor's identification number and fills in the total purchase price of the food items. The participant then signs the food instrument. The vendor deposits the food instrument into its bank account, and the vendor's bank then presents the food instrument for payment at the Department's 'contract bank.' Id.
"The Department assures that its authorized vendors are properly complying with the WIC program and redeeming the food instruments for the purchase of approved supplemental foods through a variety of measures, including monitoring, 'compliance buys,' and inventory audits. See Ala. Admin. Code (Dep't of Public Health), Rule 420-10-2-.05(5).
" 'An inventory audit is the official examination and documentation of a WIC vendor's inventory, accounts, and records to determine whether the vendor has purchased sufficient quantities of supplemental foods to provide participants the quantities specified on the food instruments redeemed by the vendor during a given time period.'
" Rule 420-10-2-.05(5)(c)."

Alabama Dep't of Pub. Health v. Bessemer Meat/Se. Meat, 216 So.3d 448, 449-50 (Ala. Civ. App. 2016).

First Avenue had been approved to participate as a vendor in the WIC program since at least 2011. From July 17, 2013, until September 17, 2013, the Department conducted an inventory audit on First Avenue. In September 2013, at the conclusion of the audit, the Department mailed a letter to Mr. Lee requesting all original records that would show First Avenue's purchases of infant formula and milk between July 17, 2013, and September 17, 2013. In October 2013, the Department sent an additional request to Mr. Lee for receipts and invoices of First Avenue for the same period.

On November 25, 2013, the State Health Officer sent a letter notifying Mr. Lee that, during the inventory audit, the Department had discovered a difference of $7,790.02 between the total retail value of infant formula available for sale at First Avenue and the amount of redeemed WIC-program food instruments for formula. The letter also noted a difference of $3,086.52 between the retail value of First Avenue's available milk inventory and the amount of redeemed WIC-program food instruments for milk. The letter instructed First Avenue to reimburse the Department for the $10,876.54 difference.

In December 2013, the Department sent a letter notifying Mr. Lee of its intent to disqualify First Avenue from participation as an authorized vendor in the WIC program for three years. The Department held an administrative-review hearing regarding the intended action at Mr. Lee's request in March 2014. At the hearing, Amanda Martin, the Alabama WIC-program director, testified that, in order to become an authorized WIC vendor, a vendor must comply with specified program requirements. Martin testified that the Department conducts monitoring visits, compliance buys, and inventory audits in which it reviews the vendor's redemptions and compares them to the vendor's documented inventory to ensure compliance with the WIC-program requirements.

Martin explained that, during an inventory audit, the Department physically counts the initial inventory of a product at the store and then reviews the redemption of food instruments for that product during a specified period. Martin stated that the Department requests inventory receipts for the period for which it audits the vendor.

Stacey Neumann is the director of vendor management for the WIC program. Neumann testified that First Avenue was selected for the inventory audit based on "the amount of redemptions and high risk indicators." Neumann explained that First Avenue had zero variance between the two most highly redeemed food-instrument types, which, she said, is an indicator of price fixing. Neumann also testified that First Avenue had a high redemption rate in comparison to other vendors in its peer group. Specifically, Neumann explained that "First Avenue has one cash register, and their redemptions were comparable to [a] store that has twenty to thirty cash registers," which, she said, "could be indicative of program fraud and abuse."

Neumann participated in the initial physical inventory audit, and she testified that Mi Kyung Lee ("Mrs. Lee") was present during that audit. Neumann testified that Mrs. Lee was asked to obtain the formula receipts and that she retrieved them without any apparent difficulty. Neumann testified that Mrs. Lee appeared to understand the interactions that occurred with Neumann and Don Bird, the investigator.

Bird testified that he did not perceive any problems with Mrs. Lee's understanding of the activities and that there was "good communication." Bird testified that he asked Mrs. Lee the questions contained on the various audit forms and that he input the answers that she gave to him. Upon concluding the audit, Bird found that "there was a huge shortage of the inventory compared to what [First Avenue] had redeemed" and that First Avenue had a shortfall of $7,790.02 in regard to infant formula. Bird further testified that, with regard to its milk inventory versus redemptions, First Avenue had a shortfall of $3,086.52. Bird testified that he asked Mrs. Lee whether there was additional inventory located in the back of the store and that she responded that there was not.

Mrs. Lee testified that she manages First Avenue and that Mr. Lee owns the store. At the time of the administrative-review hearing, she had been in the United States for 14 years, but she is originally from Korea. Mrs. Lee testified that she routinely kept infant formula in the back of the store, that she had around $10,000 worth of infant formula in the back room during the first physical inventory audit, and that she would have informed the investigators of that fact if she had known an audit was being conducted. Mrs. Lee testified that, at the end of the audit period, she probably had about $5,000 worth of infant formula in the back room. Mrs. Lee testified that she was never asked whether there was formula in the back room.

When asked about her signature on the inventory worksheet that certified that the inventory amount was correct, Mrs. Lee testified that she did not read the inventory worksheet but that she signed it because she thought it was routine monitoring. However, Mrs. Lee also testified that she is not required to sign anything during routine monitoring.

With regard to the undocumented milk products, Mrs. Lee initially testified that a storm caused damage to the store and that, as a result, the milk receipts became wet and were ruined. Mrs. Lee also testified that a computer was located on the desk on which the receipts were located but that the computer was not damaged. Mrs. Lee then testified that she had placed the receipts in a box and that the box was misplaced when contractors were making repairs to the storm damage. At the conclusion of Mrs. Lee's testimony, the hearing officer asked Mrs. Lee how she responds to questions that she does not understand. Mrs. Lee stated: "If I don't understand, I want to make sure I understand .... And then I will ask."

In April 2014, after the administrative-review hearing, the hearing officer submitted a detailed opinion recommending that the Department's decision be upheld and determining that First Avenue had engaged in a pattern of claiming reimbursement for the sale of infant formula and milk products in excess of the store's documented inventory for those products. As part of that recommendation, the hearing officer found, in part, that Mrs. Lee's interactions with the Department were not "hampered by a language barrier." The hearing officer also recommended rejecting Mr. Lee's argument that the storm damage referenced by Mrs. Lee prevented him from maintaining the documents as required by the WIC-vendor contract because of a "force majeure." In May 2014, the State Health Officer adopted the hearing officer's recommendation and entered an order disqualifying First Avenue from participating as a vendor in the WIC program for three years.

On June 16, 2014, Mr. Lee filed a petition for judicial review in the circuit court, pursuant to § 41-22-20, Ala. Code 1975. The record does not contain a transcript of any proceedings before the circuit court. On May 13, 2015, the circuit court entered an order reversing the State Health Officer's decision, finding, in part, that the hearing officer had committed an error of law by failing to interpret Mr. Lee's compliance with the WIC contract in light of contract-law principles and defenses, that the hearing officer's finding that Mrs. Lee's execution of the inventory worksheet was not hampered by a language barrier was not supported by the evidence in the administrative record, and that the hearing officer improperly refused to consider Mr. Lee's force majeure defense; the circuit court remanded the matter for further proceedings.

On remand, the hearing officer submitted additional findings of fact and conclusions of law to the State Health Officer, in compliance with the circuit court's remand order, finding, in part:

"The Vendor Contract signed by Ms. Lee outlines the vendor's and the Department's responsibilities (Sections I and II), including compliance with all applicable regulations found in Ala. Admin. Code r. 420-10-2 (2014) and unannounced monitoring visits, which 'may include compliance purchases and/or inventory audits to collect evidence of improper VENDOR practices'; termination (Section III); clauses governing debarment, suspension, financial necessity, emergency cancellation, amendment, standard of practice, assignment and severability; and a sanction schedule. The contract also includes an acknowledgment by the vendor that he/she has read the entire contract and fully understands and accepts its requirements.
"...[T]he undersigned finds no defense available to Ms. Lee-whether under a theory of mistake, lack of assent, or unconscionability-regarding her claims that a language barrier, either oral or written, precluded her from understanding the inventory worksheets that she signed following the Department's July 17, 2013 and September 17, 2013 inventory audits at First Avenue. Both Alabama and federal contract law are clear that signatories to contracts are responsible to know and understand the provisions of the documents they sign; in particular, Alabama law does not excuse a party from the enforcement of a contract provision because he states that he could not read the document or understand it. Mason [v. Acceptance Loan Co. ], 850 So.2d [289] at 296 [ (Ala. 2002) ] ; Mitchell Nissan, Inc. [v. Foster ], 775 So.2d [138] at 140 [ (Ala. 2000) ]. These holdings were extended in Alabama under Scurtu [v. International Student Exch., 523 F.Supp.2d [1313] at 1320-21 [ (S.D. Ala. 2007) ], to an inability to read or understand a document due to a language barrier; courts in other jurisdictions, including the cited cases from New York and New Jersey, have made similar findings.
"There was no evidence presented that Ms. Lee could not read the inventory worksheets, that she could not understand them, that she was not given the opportunity to ask anyone what they meant, that she ever asked anyone to read or explain them to her before she signed them or that she ever asked what they were. See Scurtu, 523 F.Supp.2d at 1321. Ms. Lee's clear and consistent testimony was that she did not read the inventory worksheets-she simply signed them because the Department's investigator asked her to do so and because she thought it was routine monitoring, although she acknowledged that routine monitoring does not require a signature. She said she understood that the word 'certify' means to 'make sure.'
"In response to questions from the undersigned, Ms. Lee stated that if she does not understand a question, she 'wants to be sure I understand ... and then I will ask.' She did not ask for clarification regarding any questions posed at the hearing by the Department's counsel, although she was advised that she could do so. Both of the Department's witnesses testified that they did not perceive any difficulty regarding Ms. Lee's ability to communicate with them, and no one assisted her in responding to the Department's questions during either visit. When asked to retrieve the formula receipts during the first visit, Ms. Neumann testified that Ms. Lee went to the back of the store and retrieved them. Ms. Neumann stated that she found no need to avail herself of the Department's language line during the first visit. Ms. Lee has been in the United States for fourteen years.
"....
"Based on the evidence presented during the administrative hearing and the applicable contract law, the undersigned finds no evidence that Ms. Lee's compliance with the WIC Vendor Contract was hampered by a language barrier and finds no defenses in this regard available to Ms. Lee to negate her signatures and her assent to the statements included on the inventory worksheets."

The hearing officer also determined that, although the defense of force majeure was available to avoid contract obligations, that defense did not apply here:

"Ms. Lee testified that she is unable to produce receipts to reconcile the shortfall in First Avenue's documented inventory because the building was damaged by lightning and flooding on August 3, 2013, ruining her receipts. Ms. Lee explained that the receipts were stored in a desk in First Avenue's back room, on which she kept a computer utilized strictly for printing labels and alphabetizing food items. She does not keep a record of invoices or receipts on the computer. She stated that the receipts in the desk became wet during the flooding and were stuck together and unusable, but the computer was not damaged.
"Sometime later, when the room was being repaired by the landlord in August and September 2013, Ms. Lee lost the milk receipts. She stated that the box in the back room storing her receipts was moved several times while the repairs were being made and was eventually misplaced.
"Ms. Lee's inability to produce the receipts that were placed in a box and misplaced while the landlord was making repairs to the building following the August flooding was not the result of an act of God. It is not clear from the testimony exactly what the box contained, although it appears that it included receipts for inventory purchased by Ms. Lee between August 4, 2013, following the flooding that occurred on August 3, 2013, and September 17, 2013, the end of the audit period. The disappearance of that box is solely attributable to negligence on the part of Ms. Lee.
"The central issue, then, is whether the flood of August 3, 2013 constituted an act of God that excuses Ms. Lee's inability to meet her recordkeeping obligations under the WIC Vendor Contract and merits her disqualification from the WIC Program.
"To be considered an 'act of God,' the force of nature causing the injury must have been the proximate cause of the injury, such that no other act could have prevented the result. See Hill Air of Gadsden, Inc. [v. Marshall ], 526 So.2d [15] at 16-17 [ (Ala. 1988) ] ; Bradford [v. Universal Construction Co. ], 644 So.2d [864] at 866 [ (Ala. 1994) ]. In this case, the flooding at First Avenue damaged the receipts inside the desk, but did not affect the computer on the desk. The Department's letters of September 24, 2013 and October 11, 2013 sought 'all original records [in the form of invoices/receipts that identify the quantity and prices] that show the purchases by your store of all infant formula and all whole, 2%, 1%, and fat-free milk between July 17, 2013, through September 17, 2013'; however, Paragraph 41 of the vendor contract merely requires the vendor to provide upon request 'any and all records pertinent to this Contract for review including records of purchases of WIC items for resale and Food Instruments and Cash Value Vouchers. These records must include a detailed listing of items and quantities purchased and names and addresses of the wholesaler or seller.' Id. Had Ms. Lee exercised ordinary care by utilizing the computer or any other backup system to store the receipts or copies thereof, she could have avoided the total destruction of her records and met her obligations under the WIC contract.
"The undersigned finds that the destruction of her only business records by any means-whether by flood, fire, theft, etc.-was 'among the probable contingencies which [Mrs. Lee] should have foreseen and provided for.' Glover [v. Taylor & Co.], 41 Ala. [124] at 130 [ (1867) ]. Indeed, even after the flooding-and the subsequent loss of her records-Ms. Lee did not make any effort to further secure her records or improve upon her recordkeeping methods; she simply transferred her business records from the desk in the back room to a random box, which was subsequently lost. Ms. Lee does not know when the box was misplaced.
"The undersigned thus concludes that the loss of Ms. Lee's inventory receipts was not due to an act of God, as defined by the applicable state and federal case law, and does not excuse her responsibilities under the WIC Vendor Contract by reason of force majeure. Ms. Lee is thus responsible for a documented inventory shortfall of $7,790.02 for formula and $3,086.52 for milk for the period July 17, 2013 through September 17, 2013. Upon a finding that a vendor's documented inventory for a certain period of time does not comport with its WIC redemptions during that same time period, the Department's rules require it to disqualify the vendor from participation in the program and recoup the overcharges to the Department. Ala. Admin. Code r. 420-10-2-.05(5)(d) and (e)3(ii) (2014)."

(Citations to administrative record omitted.) On August 27, 2015, the State Health Officer entered the following order disqualifying First Avenue from participation in the WIC program for three years:

"The State Health Officer has reviewed this matter and determined that there was no evidence presented that Ms. Lee-a U.S. resident for 14 years-could not read the inventory worksheets, that she could not understand them, that she was not given the opportunity to ask what they meant, that she ever asked anyone to read or explain them to her before she signed them, or that she ever asked what they were. In short, there was no evidence that Ms. Lee's execution of the worksheets was hampered by a language barrier. Moreover, upon review of the Hearing Officer's thorough examination of contract law, the State Health Officer does not believe any legal defenses are available to First Avenue Meat and Fish Market which would preclude it from being bound by the WIC Vendor Contract. In regards to the force majeure defense, the loss of Ms. Lee's inventory receipts was not due to an act of God, as defined by the applicable state and federal case law.
"Overall the administrative record supports the Hearing Officer's findings and the State Health Officer agrees that the admissible evidence of record fully supports the conclusion that First Avenue Meat and Fish Market violated 7 C.F.R. § 246.12, Alabama Administrative Code rule 420-10-2-.05(5), and the WIC Vendor Contract.
"IT IS THEREFORE ORDERED, in accordance with Section 22-12C-2 of the Code of Alabama 1975, that the three-year disqualification of First Avenue Meat and Fish Market, owned and operated by Su Won Lee, from the WIC vendor program, is hereby affirmed."

On February 18, 2016, First Avenue filed in the circuit court a response objecting to the State Health Officer's decision on remand. On October 14, 2016, the circuit court entered its judgment, finding, in part:

"While hearing officers are presumed to be unbiased until a conflict of interest or other specific reason for disqualification is shown, [ Johnson v. United States Dep't of Agric., 734 F.2d 774] at 783 [ (11th cir. 1984) ], the facts of the case are particularly disturbing to this Court.
"The Court finds it necessary to note in reviewing the aforementioned findings that the Hearing Officer charged with reviewing this administrative matter initially recommended the three-year suspension, and issued a determination based upon mistakes of law, as set forth in this Court's Order of May 13, 2015.
"This Court remanded this matter to the [Department] for review of the evidence presented during the administrative hearing under the proper legal framework and reversed First Avenue's revocation from participation in the WIC program.
"Clearly in remanding the matter, the Court contemplated the hearing examiner acting in her traditional role as the trier of fact to weigh the evidence, resolve conflicts in the evidence, and evaluate the credibility of the witnesses based upon the corrections of law advanced by this Court. A review of the Hearing Officer's determination by the Hearing Officer does not advance the interests of impartiality, which is supposed to be a linchpin of the administrative and judicial processes. There was no meaningful review of the record in light of this Court's Order on remand, and thus the adjudication of the Petitioner's administrative petition on remand poses serious due process questions.
"With regard to the alleged redemption of excess vouchers regarding infant formula, the Hearing Officer determined that as a matter of contract law, Mrs. Mi Kyung Lee (hereinafter 'Mrs. Lee'), who served as the store manager for First Avenue, was to be 'held to her representations' (Op. 12). Specifically, the Hearing Officer found that Mrs. Lee's signature upon the Inventory Worksheets at the conclusion of both audits bound her to her representation that the inventory count conducted by the [Department's] investigators was accurate. Id.
"The Court finds that the findings of the [Department] with regard to the alleged redemption of excess vouchers regarding infant formula, are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, and is unreasonable, arbitrary, and capricious. Petitioner provided substantial evidence that (1) Mrs. Lee's ability to understand the terms of the Inventory Worksheet were substantially limited due to her language limitations; and (2) Mrs. Lee relied upon Investigator Don Bird's representations in signing the Inventory Worksheet, which she did not fully understand....
"The record is replete with evidence supporting Mrs. Lee's posture that she did not understand that which she signed. The Hearing Officer determined that Mrs. Lee demonstrated command of the English language because of her extended presence in the United States. Admin. Trans., p. 13. The Court finds this determination to be unsupported by the evidence.
"Mr. Bird testified during the administrative hearing that he completed the forms for Mrs. Lee. Admin. Trans. p. 79. Mrs. Lee testified that she relied upon Mr. Bird's representations, as he had been in the store on numerous occasions. Admin. Trans., pp. 85, 95-99. Mr. Bird's conscious decision not to provide the form to Mrs. Lee but rather to complete it himself and then to ask for Mrs. Lee's signature, and Mrs. Lee's own testimony regarding her limitations, establish that [the State Health Officer's] Order is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.
"As such, the Court also finds that the Hearing Officer's determination with regard to a finding of fact-namely that Mrs. Lee's execution of the Inventory Worksheets was not hampered by a language barrier-was unsupported by the evidence as set forth in the administrative record.
Moseley [Grocery v. State Dep't of Pub. Health, 928 So.2d [304] at 311 (Ala. Civ. App. 2005).
"With regard to the alleged redemption of excess vouchers regarding milk products, the Hearing Officer's determination is unsupported by the evidence set forth in the administrative record and was made in reliance upon an error of law.
"The record reflects that Petitioners provided an affidavit from the property owner, as well as images reflecting the extensive damage, all of which have been filed as part of the administrative record in this matter, suffered by Petitioner as a result of the storm, and in support of their position that said vouchers were destroyed, and that they were excused from performance.
"[The Department] asserts that the defense of force majeure is not available to Petitioners, and that the 'federal and state rules do not make provision for an exception therefrom due to force majeure events' while citing to 7 C.F.R. 246.12(l)(iii)(B) and Al[a]. Admin. Code, R. 420-10-2-.05(5)(e)3(ii)(2013)....
"The Court is not convinced. The defense of force majeure exists under Alabama state law. As set forth by the Alabama Supreme Court, when loss is proximately caused by an act of God which is not foreseeable, the Petitioner may not be liable for failure to effectuate the performance of a contract. Louisville & N.R. Co. v. Finlay, 233 Ala. 128[, 170 So. 207] (1936).
"This Court also finds the approach of the West Virginia Supreme Court to be persuasive and on point in this matter. In Foodland v. State of West Virginia Department of Health and Human Resources, 207 W.Va. 392[, 532 S.E.2d 661] (W.Va. 2000) the West Virginia Supreme Court addressed a comparable situation wherein a Petitioner asserted a defense which was not set forth in the WIC statute, but which affected the very question of whether the West Virginia Department of Health established that the vendor actually committed an overcharge violation. The West Virginia Supreme Court held that the Petitioner was not responsible for overcharging the WIC program where an employee committed the offense and the owner was not cognizant, effectively finding that scienter was a required element.
"The Eleventh Circuit has also ruled similarly regarding the defense of force majeure. In Tug Allie-B, Inc. v. United States, 273 F.3d 936, 944 (11th Cir. 2001), the Eleventh Circuit held that when Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent. 7 C.F.R. 246 does not enumerate exceptions to the general prohibition, and as such, [the Department] cannot unilaterally determine that additional exceptions are not to be implied to the detriment of Petitioner.
"The Hearing Officer's summary dismissal of Petitioner's defense regarding force majeure was an error of law, and the dismissal of clear evidence of said storm establishes that the [State Health Officer's] Order was unsupported by the evidence.
"THEREFORE, this Court finds that the imposition of the three-year disqualification period, the Opinion of the Hearing Officer on Remand, the Health Officer's Order on Remand, and [the Department's] adoption of said Order were and are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, made upon error of law, and were and are unreasonable, arbitrary, and capricious.
"Accordingly, this Court hereby removes the imposition of the three-year disqualification period imposed by the Alabama Department of Public Health."

The Department filed its notice of appeal to this court on November 22, 2016. We have jurisdiction of this appeal pursuant to § 12-3-10, Ala. Code 1975.

Standard of Review

"We review the judgments of the circuit court without any presumption of correctness, since that court was in no better position to review the orders of the State Health Officer than is this court." Alabama Dep't of Pub. Health v. Bessemer Meat/Se. Meat, 216 So.3d at 451 (citing Ex parte Williamson, 907 So.2d 407, 413 (Ala. 2004) ).

Our review of the State Health Officer's decision is governed by § 41-22-20(k), Ala. Code 1975, which provides, in part:

"Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) In violation of any pertinent agency rule;
"(4) Made upon unlawful procedure;
"(5) Affected by other error of law;
"(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion."

"By that standard, this court must consider the evidence contained in the whole record and determine whether the record contains reliable, probative, and substantial evidence that sustains the orders of the State Health Officer. In making that decision, this court presumes that the agency decision is just and reasonable." Alabama Dep't of Pub. Health v. Bessemer Meat/Se. Meat, 216 So.3d at 452 (citing § 41-22-20(k), Ala. Code 1975 ).

Discussion

The circuit court found that the State Health Officer's decision was "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, made upon error of law, and [was] unreasonable, arbitrary, and capricious." In reaching that conclusion, the circuit court determined that, contrary to the hearing officer's determinations, Mrs. Lee's certification that the inventory listed on the inventory worksheet was accurate was ineffective because of a language barrier and that First Avenue's failure to maintain documentation to support its inventory was excused by an act of God.

Pursuant to the Alabama Administrative Code provisions relating to vendor compliance and sanctions, the Department "shall" impose a "mandatory disqualification for three years" if a vendor engages in "[a]

pattern of claiming reimbursement for the sale of an amount of a specific WIC food item that exceeds the vendor's documented inventory of that WIC food item for a specific period of time." Ala. Admin. Code (Dep't of Public Health), Rule 420-10-2-.05(5)(e)3(ii). In order to prove a pattern, the Department was tasked with showing that "during a single review ... a vendor's records indicate that, for a two month audit period, the vendor's redemptions for a specific food item exceeds its documented inventory." Ala. Admin. Code (Dep't of Public Health), Rule 420-10-2-.05(5)(f).

The Department provided testimony from WIC-program employees that demonstrated the methods and procedures employed by the Department in conducting its inventory audit of First Avenue. The Department also provided the audit forms completed from information provided by Mrs. Lee and inventory purchase receipts that First Avenue provided to the Department. Contained within those documents was the inventory worksheet that Mrs. Lee signed to certify that the counted inventory was accurate.

First Avenue asserted that it had additional infant formula in a back room of the store and that, because of a language barrier, Mrs. Lee failed to inform the investigators of the additional inventory and that Mrs. Lee did not know what she was signing when she certified that the counted inventory amount was accurate. The Department presented testimony from two employees regarding their direct involvement and interactions with Mrs. Lee, and both noted that they experienced no difficulty in communicating with Mrs. Lee. Neumann testified that Mrs. Lee went to the back of the store and retrieved formula receipts when she was asked to during the first visit. The hearing officer also questioned Mrs. Lee specifically regarding her actions when she does not understand something. Mrs. Lee responded: "If I don't understand, I want to make sure I understand ... And then I will ask." The hearing officer also noted that Mrs. Lee "did not ask for clarification regarding any questions posed at the hearing by the Department's counsel, although she was advised that she could do so."

The hearing officer noted in her original decision that, even if Mrs. Lee believed from her interactions with the WIC employees that the Department was conducting only routine monitoring, "the Department's subsequent correspondence of September 24, 2013, one week after its second visit, expressly notified First Avenue that it was 'conducting an inventory audit of your store for the period of July 17, 2013, through September 17, 2013,' " and "[t]he Lees had every opportunity at that time, and until October 28, 2013, to inform the Department of any additional inventory that might affect the outcome of the audit and/or to inquire further as to the audit process." (Footnotes omitted.) The hearing officer further noted that, "even if [she] were to assume as true [Mrs.] Lee's testimony that First Avenue possessed $10,000.00 in formula stock at the beginning of the audit period on July 17, 2013, and $5,000.00 worth at the end of the audit period on September 17, 2013 ..., there would still be an inventory shortage of $2,790.02 that would require the Department to disqualify First Avenue from participation in the WIC Vendor Program pursuant to 7 C.F.R. § 246.12(1)(3)(B) and Ala. Admin. Code r. 420-10-2-.05(5)(e)3(ii) (2013)."

To account for her inability to provide receipts to document First Avenue's milk products, Mrs. Lee initially testified that the milk receipts had been destroyed from a water leak due to a storm. Mrs. Lee also testified that a computer that was located on the same desk upon which the receipts had been stored was not damaged. Mrs. Lee later testified that she had placed those receipts in a box and that the box had been misplaced during the storm-damage repair. The hearing officer found that "[Mrs.] Lee's inability to produce the receipts that were placed in a box and misplaced while the landlord was making repairs to the building following the August flooding was not the result of an act of God.... The disappearance of that box is solely attributable to negligence on the part of [Mrs.] Lee."

The hearing officer, who had the advantage of witnessing Mrs. Lee's testimony, could have found Mrs. Lee's testimony to be credible. Instead, the hearing officer determined that a language barrier did not prevent Mrs. Lee from understanding and interacting with the Department and that First Avenue was unable to document its milk-product inventory because of Mrs. Lee's negligence, rather than an act of God. Credibility decisions were for the hearing officer to make. "[T]he circuit court is not authorized to reweigh the evidence or to substitute its decisions as to the weight and credibility of the evidence for those of the agency." Ex parte Williamson, 907 So.2d at 416-17 (citing Ex parte Beverly Enters.-Alabama, Inc., 812 So.2d 1189 (Ala. 2001) ; and State Health Planning & Dev. Agency v. Baptist Health Sys., 766 So.2d 176 (Ala. Civ. App. 1999) ).

The Department provided substantial evidence demonstrating that First Avenue's redemptions for infant formula and for milk products exceeded its documented inventory. Accordingly, based on the limited judicial review accorded agency decisions, the State Health Officer's decision, which is based on "reliable, probative, and substantial evidence" in the record, is due to be sustained.

Conclusion

The judgment of the circuit court is reversed, and the cause is remanded for the entry of a judgment affirming the State Health Officer's order. See Alabama Dep't of Pub. Health v. Bessemer Meat/Se. Meat, 216 So.3d at 453.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

      In that case, the State Health Officer disqualified three other Birmingham-area vendors from participating in the WIC program based on inventory audits conducted during the same period involved here. Those three other vendors appealed the disqualifications to the Jefferson Circuit Court and eventually appealed to this court. See Alabama Dep't of Pub. Health v. Bessemer Meat/Se. Meat, 216 So.3d 448 (Ala. Civ. App. 2016).


source: Caselaw Access Project

author: MOORE, Judge. THOMPSON, Presiding Judge, dissenting.

license: Public Domain

text:
    H.B. v. MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2151018
    Court of Civil Appeals of Alabama.
    April 14, 2017
    Brenda Drendel Hetrick, Mobile, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

H.B. ("the mother") appeals from a judgment entered by the Mobile Juvenile Court ("the juvenile court") terminating her parental rights to H.M.P. ("the child"). We reverse the juvenile court's judgment.

Procedural History

On February 12, 2016, the Mobile County Department of Human Resources ("DHR") filed a petition to terminate the parental rights of the mother and P.P. ("the father"). After a trial, the juvenile court entered a judgment terminating the parental rights of the mother and the father to the child. In its judgment, the juvenile court determined the child to be dependent and found, in pertinent part:

"Since obtaining custody of said child, [DHR] has offered services to the mother, and made all reasonable efforts to promote reunification. Said unification efforts failed due to the failure of the mother to accept services, or to amend her circumstances for the best interests of the child."

The juvenile court found that no other viable alternatives existed and that "termination of [the] parental rights of the [mother] is in the best interests of the child to promote permanency."

Facts

The evidence in the record indicates that the mother was diagnosed at age 22 with psychosisschizophrenia after suffering a mental-health breakdown following the death of her grandmother. The mother suspended taking her medication for that illness when she became pregnant with the child, who was born on January 30, 2007. She resumed taking the medication two to three months later, but at a different dose than as prescribed.

In 2008, when the child was approximately 18 months old, DHR removed the child from the one-bedroom apartment the mother shared with her mother ("the maternal grandmother") and the child. The mother and the maternal grandmother testified to a dispute between the mother and a neighbor, which, they claimed, had possibly led to the neighbor's reporting the mother for failing to properly supervise the child. The mother testified that, on that occasion, she was on the front porch of the apartment while the child was inside the apartment in a high chair within the mother's sight. The mother said that she became stressed when DHR arrived to take the child away. When the child was removed, the mother said, she asked for an ambulance, which took the mother to a local hospital. Natasha Dysert, a DHR worker who was "not on the scene that day," testified that DHR had been called due to the mother's erratic behavior and that, upon arrival at the mother's apartment, DHR workers discovered the child unattended in the doorway of the apartment; according to Dysert, drug paraphernalia had also been found inside the apartment. At that time, the mother, who, according to Dysert, was in the parking lot, reported that she had been shot in the head and that people were trying to run over her with a car.

The mother testified that she had been hospitalized following the 2008 incident. Dysert testified that, at the time of that incident, the mother was off the medication she had been prescribed for her mental illness but that changes in her medication had been made by the doctors who treated her. The mother testified that the doctors had stabilized her medication. Dysert testified that the mother had complied with DHR's family-reunification plan, which included a psychiatric evaluation, and the child was returned to the custody of the mother in 2010.

The child resumed living with the mother and the maternal grandmother in the same one-bedroom apartment. When the family planned to move from those premises in 2012, the management inspected the apartment and found 28 or more cats and a dog living there. DHR investigated and determined that the apartment was unsanitary and unsuitable for the child, so the child was again removed from the custody of the mother. The maternal grandmother testified that the mother was overly compassionate to animals and had regularly taken in strays. Charlene Clemons, the DHR social worker who oversaw the 2012 case, testified that DHR had established goals for the mother, including obtaining alternative housing and maintaining her mental health. According to Clemons, the mother had met those goals and the child was returned to the custody of the mother in December 2013 subject to DHR's supervision for the following six months. At that time, the mother and the maternal grandmother were residing in a three-bedroom house that the maternal grandmother had begun renting in 2012.

On August 31, 2015, DHR was called to the family's house by police officers who were serving an arrest warrant on the mother for theft of property. Natasha Reyes, the DHR social worker who responded to that call, testified that, when she arrived at the house, the house did not have running water or electricity and was in an unsanitary condition due to trash, cat waste, and bugs. The mother testified that the electric and water services to the house had been cut off for approximately six months after the maternal grandmother had lost her employment and could not afford to pay the bills. DHR removed the child from the mother's custody and placed the child into foster care. DHR requested that the mother undergo a psychological evaluation, attend parenting classes, and work with "FOCUS" in-home services, which the mother initially declined; the mother did, however, visit with the child.

On January 19, 2016, DHR changed its permanency plan from reunification with the mother to adoption. Sarah Jernigan, a DHR social worker, took over the case on March 8, 2016. Jernigan testified that the mother had begun cooperating with DHR's requests by undergoing a psychological evaluation in May 2016 and by participating in "Tools of Choice" in-home services. The mother testified that she had completed parenting classes. Jernigan testified that she had allowed the child to visit with the mother in the rental house in which the mother and the maternal grandmother resided after concluding that the house was suitable for the child. The maternal grandmother testified that she had resumed gainful employment and that she had paid all the necessary fees to restore electric and water services to the house. Jernigan testified that, at the time of the trial, the mother had made progress and was nearing completion of all of the goals DHR had set for her. The mother testified that she was given two years' probation on the theft-of-property criminal charge and that she was ready, willing, and able to regain custody of the child.

There was no evidence of harm to the child, which the mother denied and which DHR did not attempt to prove. The mother testified that she had taken prenatal vitamins when she was pregnant with the child and that the child had been born "in perfect health." Dysert testified that, in 2008, the child had been found in a high chair, which, she admitted, was an appropriate place for the child to be. The mother testified that the child was never in danger. DHR discovered that the child had not yet been immunized, but no one testified that the child's immunization treatment was overdue. The mother testified that she and the maternal grandmother had paid to have the child immunized during the time the child was in DHR's custody between 2008 and 2010. The mother also testified that she had attended all of the child's medical appointments during that period.

Although DHR removed the child due to the conditions of the apartment in 2012, no witness testified that the health of the child had been adversely affected by those conditions. The mother testified that the child had slept in the bedroom "away from the cats," which, she testified, had stayed in the front room of the apartment. The mother testified that after the child was returned to her custody, the mother and the maternal grandmother had cared for the child by feeding, clothing, entertaining, and educating the child. The mother and the maternal grandmother celebrated birthdays and other holidays with the child by giving her toys and presents. No one from the child's school ever questioned the care the child received.

Reyes testified that when she removed the child from the mother's custody in 2015, the child was in good physical condition and was clean. The mother testified that the child was never ill or malnourished, but was at a healthy weight. Although the family's house was without electric service and running water for a period, the child had informed Reyes that, during that time, she had been eating out and had also eaten frozen dinners that had thawed to room temperature. The maternal grandmother and the mother testified that they had improvised by using gallons of water to flush the toilet as well as occasionally staying at a motel to bathe. They both testified that, despite the lack of electricity and running water, the child had been kept well-groomed, had never missed a meal, had always had shelter, had always attended school on time, and had received help with her homework. According to the maternal grandmother, the child had earned good grades while in her and the mother's care, maintaining a "B" average. Jernigan testified that the child is bonded with the mother and the maternal grandmother and that they display love for one another.

The mother was 37 years old at the time of the trial. She has been regularly taking two Haldol tablets per day for her mental illness, as well as undergoing therapy once a year at Altapointe, a mental-health facility. She also visits Altapointe every three months for the purpose of monitoring her medication. Veronica Davis, a licensed professional counselor who was called as an expert witness by DHR, testified that the mother was "stabilized" at the meeting they had had on May 18, 2016. The mother testified that she had not had a mental-health crisis since 2008, when DHR first removed the child from her custody. The mother testified that her mental illness does not impair her ability to care for the child. The maternal grandmother and the mother both testified that the mother could care for the child independently.

Issue

On appeal, the mother argues that the evidence does not support the juvenile court's findings that she failed to successfully rehabilitate herself and adjust her circumstances to meet the needs of the child or that termination of her parental rights serves the best interests of the child.

Standard of Review

A judgment terminating parental rights must be supported by clear and convincing evidence, which is " ' "[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion." ' " C.O. v. Jefferson Cty. Dep't of Human Res., 206 So.3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1975, § 6-11-20(b)(4) ).

" '[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.'
" KGS Steel[, Inc. v. McInish,] 47 So.3d [749] at 761 [ (Ala. Civ. App. 2006) ].
"To analogize the test set out ... by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232-33 (D.C. Cir. 1947),] for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, 'the judge must view the evidence presented through the prism of the substantive evidentiary burden'; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would 'produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.' "

Ex parte McInish, 47 So.3d 767, 778 (Ala. 2008). This court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing. See Ex parte T.V., 971 So.2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id. We review the legal conclusions to be drawn from the evidence without a presumption of correctness. J.W. v. C.B., 68 So.3d 878, 879 (Ala. Civ. App. 2011).

Discussion

Section 12-15-319, Ala. Code 1975, provides, in pertinent part:

"(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parent[ ] of a child [is] unable or unwilling to discharge [his or her] responsibilities to and for the child, or that the conduct or condition of the parent[ ] renders [him or her] unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parent[ ]."

In order to terminate parental rights under § 12-15-319, a juvenile court must be clearly convinced from the evidence that the parent cannot or will not provide adequate care for the child. See S.U. v. Madison Cty. Dep't of Human Res., 91 So.3d 716, 720 (Ala. Civ. App. 2012).

In deciding whether a parent is unable to properly parent a child, the juvenile court must consider, among other factors, "[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" and the "[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, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review." § 12-15-319(a)(7) & (12). In its judgment, the juvenile court found that DHR's efforts at rehabilitation had failed and that the mother had not adjusted her circumstances to meet the needs of the child. The record does not contain clear and convincing evidence to sustain those findings.

Once DHR places a child in foster care, it has an immediate duty to use reasonable efforts to reunite the family, absent aggravating circumstances. See Ala. Code 1975, § 12-15-312. That duty requires DHR to identify the circumstances that led to removal of the child, to develop a plan to ameliorate those circumstances, and to use reasonable efforts to achieve that plan. See Montgomery Cty. Dep't of Human Res. v. A.S.N., 206 So.3d 661, 672 (Ala. Civ. App. 2016) (citing H.H. v. Baldwin Cty. Dep't of Human Res., 989 So.2d 1094, 1105 (Ala. Civ. App. 2007) (opinion on return to remand) (authored by Moore, J., with two judges concurring in the result)).

The mother argues that DHR removed the child solely because of the lack of electric service and running water at the family's house. Cf. M.G. v. Etowah Cty. Dep't of Human Res., 26 So.3d 436, 444 (Ala. Civ. App. 2009) (indicating that the mere absence of utilities would not be sufficient to terminate parental rights). Actually, Reyes testified that DHR had removed the child from the custody of the mother "[d]ue to inadequate shelter and [the mother's] being arrested for stealing ...." By "inadequate shelter," Reyes explained that she meant not only the absence of electric service and running water, but also the "deplorable" unsanitary condition of the house. Although Alabama law has not been clear on this point, other states have recognized that a child can be permanently removed from the custody of a parent who allows chronic, recurring unsanitary conditions to endanger the health of the child. See, e.g., In re J.W., 921 P.2d 604 (Alaska 1996) ; Browning v. Arkansas Dep't of Human Res., 85 Ark. App. 495, 157 S.W.3d 540 (2004) ; In re Paul E., 39 Cal.App.4th 996, 46 Cal.Rptr.2d 289 (1995) ; In re A.H., 842 A.2d 674 (D.C. 2004) ; Idaho Dep't of Health & Welfare v. Doe, 149 Idaho 653, 239 P.3d 451 (Ct. App. 2010) ; In re N.M.W., 461 N.W.2d 478 (Iowa Ct. App. 1990) ; In re Interest of E.R., 230 Neb. 646, 651, 432 N.W.2d 834, 838 (1988) ; In re Lillian R., 196 A.D.2d 503, 600 N.Y.S.2d 756 (1993) ; and In re Interest of J.R., 501 S.W.3d 738 (Tex. App. 2016). A fair reading of the record indicates that DHR removed the child primarily for that reason.

In her brief to this court, the mother correctly notes that DHR did not assist her with restoring the utilities, which the maternal grandmother independently accomplished, but the mother overlooks that DHR did schedule classes and in-home services designed to improve the mother's housekeeping abilities, the main obstacle to family reunification. Even after the mother initially refused those services, DHR continued to offer them to the mother. Thus, we conclude that DHR used reasonable efforts to reunite the family in this case.

The real issue in this case is not whether DHR used reasonable efforts, but whether those efforts failed. See T.B. v. Cullman Cty. Dep't of Human Res., 6 So.3d 1195, 1199 (Ala. Civ. App. 2008). Rehabilitation efforts succeed when those circumstances that led to the removal of the child have been resolved, id., so that the child can safely be returned to his or her parent's custody. See Ala. Code 1975, § 12-15-301 (12) (defining "reasonable efforts" as including "[e]fforts made ... to make it possible for a child to return safely to his or her home"). Conversely, if DHR has proven by clear and convincing evidence that the parent remains unable to adequately care for the child after reasonable efforts have been expended to rehabilitate the parent, the juvenile court may find that those reasonable efforts have failed. T.B., supra.

In this case, the evidence in the record indicates that DHR had not yet completed the rehabilitation process at the time of the trial. Nevertheless, the mother had adjusted her circumstances to alleviate the conditions that had led to the removal of the child. The house from which the child was removed was no longer in the "deplorable" condition that existed in 2015. Jernigan testified that the house was suitable for the child. DHR did not present any evidence suggesting that the mother lacks the mental or physical ability to maintain the house in a suitable condition. To the contrary, Jernigan testified that the mother had made considerable progress by the time of the trial. The record does not contain clear and convincing evidence indicating that the mother remained unable to properly care for the child.

"[T]he existence of evidence of current conditions or conduct relating to a parent's inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence." D.O. v. Calhoun Cty. Dep't of Human Res., 859 So.2d 439, 444 (Ala. Civ. App. 2003).

"Although a juvenile court certainly can consider a parent's past child-rearing history, see Ex parte State Dep't of Human Res., 624 So.2d 589, 593 (Ala. 1993), legislative policy, see M.G.[ v. Etowah Cty. Dep't of Human Res.], 26 So.3d [436,] 442 [ (Ala. Civ. App. 2009) ], as well as constitutional due-process concerns, see Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), require that a parent's parental rights be terminated based on clear and convincing evidence of that parent's present inability or unwillingness to care for the children that is likely to persist in the foreseeable future."

S.U. v. Madison Cty. Dep't of Human Res., 91 So.3d at 723. The conditions at the time of the trial showed that the child could safely be returned home.

A juvenile court can terminate parental rights in situations in which it is convinced that a parent has only temporarily corrected a recurring condition that threatens the welfare of the child. See J.W.M. v. Cleburne Cty. Dep't of Human Res., 980 So.2d 432, 438-39 (Ala. Civ. App. 2007) (plurality opinion). Although the juvenile court expressed concerns about the number of times the child had been removed from the custody of the mother, "in each instance, DHR'S decision to remove the child from the mother's custody appears to have been taken as a precautionary measure and not as a result of actual threats or allegations of abuse or neglect of the child." C.P.M. v. Shelby Cty. Dep't of Human Res., 185 So.3d 461, 466 (Ala. Civ. App. 2015). The undisputed evidence in the record shows that the child has never been harmed by the mother. Despite her poor housekeeping skills, the mother had always safeguarded the child from the squalor around her. Reyes specifically testified that the child was in good physical condition and was clean when taken into DHR's custody in 2015. DHR did not present any admissible evidence to contradict the testimony of the mother that the child has always been healthy and well-groomed despite her otherwise poor living conditions. See In re Paul E., 39 Cal.App.4th at 1005 n.8, 46 Cal.Rptr. 2d at 294 n.8 (pointing out that "[t]he absence of ill effects is a way of distinguishing a loving-but-dirty-home case from a case of real neglect).

To be sure, a child should not be subjected to living in unsanitary conditions, but the termination of a loving relationship between a child and his or her parent should occur only in the most egregious of circumstances. Ex parte Beasley, 564 So.2d 950 (Ala. 1990). The evidence shows that the child has thrived under the care of the mother, having bonded with her maternal grandmother, making good grades, and celebrating milestones. The child, who is now 10 years old, shares an emotional and loving relationship with the mother. Jernigan even testified that DHR had scheduled counseling to prepare the child for the possibility that the juvenile court would terminate the mother's parental rights. A parent should not lose his or her fundamental right to the custody of his or her child, and a child should not be forced to undergo the anguish of losing his or her parent and extended family, just because the parent is not a model homemaker. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In these circumstances, it is hard to see how termination of the mother's parental rights would serve the best interests of the child. Therefore, we conclude that the juvenile court erred in terminating the parental rights of the mother. We therefore reverse the juvenile court's judgment and remand the cause for the entry of a judgment consistent with this opinion. In light of our disposition of this issue, we pretermit the remaining issues raised by the mother.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Pittman and Donaldson, JJ., concur.

Thompson, P.J., dissents, with writing, which Thomas, J., joins.

THOMPSON, Presiding Judge, dissenting.

I would affirm the judgment entered by the Mobile Juvenile Court ("the juvenile court") that terminated the parental rights of H.B. ("the mother"). Therefore, I dissent.

The record indicates that the mother has a history of mental illness and that she was diagnosed at age 22 with psychosisschizophrenia. The mother was 37 years old at the time of the termination hearing, and the child was 9 years old. The mother is disabled as a result of her mental illness. She has resided for all of her life with her mother ("the maternal grandmother"). The mother testified that, except for the period during which she was pregnant with the child, she has taken Haldol to treat her mental illness; the mother insisted that she has always consistently taken that medication. I note, however, that other evidence in the record, discussed infra, indicates that there were periods in which the mother was not consistently taking the medications prescribed to treat her mental illness. The mother also testified that, since she was first diagnosed with her mental illness, she has sought treatment from an office or facility known as "Altapointe." The mother explained that she sees a counselor or psychiatrist once a year and that she goes to Altapointe for appointments concerning her medication every 90 days.

In August 2008, the Mobile County Department of Human Resources ("DHR") became involved with the mother. Natasha Dysert, a DHR social worker, testified that DHR was called because the mother was engaging in erratic behavior in the parking lot of the apartment complex in which she lived. Dysert stated that the mother was having a "mental-health crisis," and she explained that the mother had informed DHR social workers that she had been shot in the head and that people were trying to run her over with a car. Dysert testified that drug paraphernalia was found in the mother's apartment. The child, who was then 18 months old, was found alone in the apartment in a high chair. Dysert testified that the mother was transferred to a hospital by ambulance and that she was not taking her medications for her mental-health condition at that time.

The mother disputed that she was acting erratically during that incident in 2008. The mother testified that she could not remember the exact details, but that she was either on her porch or in the apartment when DHR personnel, accompanied by law-enforcement officers, came and removed the child from her custody. The mother stated at the termination hearing that she did not know why DHR had removed the child from her custody in 2008, and she also testified that she believed that a disagreement with her neighbors was the reason for DHR's intervention at that time. DHR offered the mother services that included a psychological evaluation, parenting classes, and drug-screen tests. Custody of the child was returned to the mother in May 2010.

In 2012, DHR again took the child into protective custody after its social workers investigated a complaint from police concerning the condition of the mother and the maternal grandmother's apartment. At that time, the mother, the maternal grandmother, and the child resided in a one-bedroom apartment. Charlene Clemons, a DHR social worker, testified that the mother had 45 cats living in the apartment; the mother believed that there were 30 cats and a dog in the apartment at that time. Clemons testified that the apartment was unfit for the child; she explained that the mother's apartment was dirty and that animal feces were all over the apartment. Clemons testified that she did not believe that the mother was taking her medications for the mental illness. DHR offered the mother, among other things, services "to get a psychological, to go to AltaPointe, and get back on her meds." The mother testified that animal control had removed all of the animals and that she had not had a pet since 2012. The child was returned to the mother's custody in December 2013.

The record indicates that in June 2015 DHR received a report that the mother's rental house had no working utilities and was unclean. Natasha Reyes, another DHR social worker, testified that she visited the mother's home during that time and that the child appeared to be in good physical condition. Reyes testified that the child usually appeared clean but that she had seen the child two or three times when she was not clean.

In late August 2015, the mother was arrested on a theft-of-property warrant. When law-enforcement officers arrested the mother, they contacted DHR because, according to Reyes, they found the house in "deplorable" condition. Reyes testified that the house was dirty and contained piles of trash, that there were numerous bugs in the house, and that the house had no operational utilities. The mother and the maternal grandmother admitted that they had lost water and power service to the house eight months earlier when the maternal grandmother had lost her employment, but they each testified that the child had been fed and kept clean and that she had attended school each day.

The mother testified that the child was allergic to dust and that a doctor had diagnosed the child, who had symptoms of coughing and shortness of breath, with asthma ; a question was raised about whether the mother's smoking cigarettes in the home aggravated that condition. The mother testified that she took the child for a second opinion, and she stated she was told that the child did not have asthma but that the child should be checked again as she grew older.

In offering the mother reunification services in 2015, DHR asked the mother to complete another psychological evaluation; Reyes explained that that evaluation was to determine if the mother was experiencing another mental-illness incident and whether she needed treatment. DHR also offered the mother in-home services through "FOCUS," as well as parenting classes. Reyes testified that the mother did not take advantage of those services during the time she worked on the case. Reyes testified that the case was transferred to another worker immediately following a January 19, 2016, Individualized Service Plan ("ISP") meeting. Reyes testified that although the mother went to DHR's offices for that ISP meeting, the mother refused to go upstairs to an office to take part in the meeting because her attorney, although invited to the meeting, had not shown up to attend the meeting. During that January 19, 2016, ISP meeting, the permanency plan for the child was changed from "return to parent" to "adoption." Reyes testified that she showed the January 19, 2016, ISP to the mother, and it is undisputed that the mother signed that ISP document.

Sarah Jernigan, the DHR social worker assigned to the child's case on March 8, 2016, testified that in the time between Reyes's leaving the case and Jernigan's being assigned to it, Jernigan's supervisor had managed the child's case. Jernigan testified that when she was first assigned to the case, she had difficulty communicating with the mother because the mother did not return her telephone calls. However, at some point, the mother indicated her willingness to accept reunification services, and in May 2016 the mother submitted to the recommended psychological evaluation. By the time of the termination hearing, DHR had provided in-home parenting classes to the mother, who had taken part in one of those classes. Jernigan also asked the mother to submit to a hair-follicle drug test in the week before the termination hearing, but the mother had not gone to the appointment at the testing facility because, she said, she was ill. Jernigan testified that, although her job as a social worker in this case was to provide adoptive services for the child, she had worked with the mother to provide the reunification services even though the mother had rejected those services for the first nine months that the child was in foster care after her removal from the home in 2015. Jernigan stated that, at the time of the August 1, 2016, termination hearing, the mother was making progress toward the reunification goals.

Jernigan testified that, shortly before the termination hearing, the mother had progressed sufficiently to allow a one-hour visit with the child to occur in the mother's house. That visit occurred on July 19, 2016, and was supervised by the in-home services provider; Jernigan stated that the in-home visit had gone well. However, the mother had not had additional in-home visits with the child, apparently because the termination hearing occurred so soon after that first in-home visit.

Veronica Davis, the psychologist who performed the mother's psychological examination, testified before the juvenile court and submitted her report into evidence. However, the juvenile court stated during the hearing that it would not consider Davis's report because Davis had referred to tests and evaluations performed during the examination but had not included the results of those tests and evaluations in her report. The majority opinion states that, in explaining comments in her report that was later excluded from evidence by the juvenile court, Davis stated that "the mother was 'stabilized' at the meeting [she and Davis] had had on May 18, 2016." 236 So.3d at 880. I question whether this court should rely on Davis's testimony because it was largely based upon the report that the juvenile court stated it would not consider or afford any weight. However, I point out that Davis explained that she had concerns about the mother's stability because Davis had not been provided any information about the mother's treatment at Altapointe and because the mother had missed, but had failed to reschedule, a recent, May 2016, appointment at Altapointe and that Davis qualified her statement that the mother was "stabilized" by explaining that the mother "appeared to be stable in that moment in time" and that she was "stabilized in that session."

The mother challenges the evidence supporting the termination judgment. Specifically, the mother argues that the evidence does not support a determination that DHR made reasonable efforts to reunite the mother with the child.

"Whether DHR has made reasonable efforts to reunite a parent and a child is a fact-dependent inquiry. J.B. v. Jefferson Cnty. Dep't of Human Res., 869 So.2d 475, 482 (Ala. Civ. App. 2003). '[T]he efforts actually required by DHR in each case, whether the court is considering rehabilitation or reunification, depend on the particular facts of that case, the statutory obligations regarding family reunification, and the best interests of the child.' J.B., 869 So.2d at 482."

A.M.F. v. Tuscaloosa Cty. Dep't of Human Res., 75 So.3d 1206, 1210 (Ala. Civ. App. 2011).

DHR has removed the child from the mother's custody on three occasions. In B.J.K.A. v. Cleburne County Department of Human Resources, 28 So.3d 765 (Ala. Civ. App. 2009), a mother had lost custody of her children to the Cleburne County DHR for a third time, and the Cleburne County DHR did not make any further attempt to provide reunification services. The juvenile court in that case entered a judgment terminating the parental rights of the mother in that case, and this court affirmed, concluding that the Cleburne County DHR had complied with the requirements of Alabama law in providing its earlier attempts at reunification.

"We reject [the mother's] characterization of DHR's failure to resume efforts at rehabilitation that have proven futile as a failure to fulfill its statutory duty to make reasonable efforts to rehabilitate her and to reunify her family. As we have said before:
" 'Based on these circumstances, the juvenile court reasonably could have concluded that an adequate amount of time and effort had been expended in an attempt to rehabilitate the mother but that further time and effort would not help achieve the goal of family reunification in light of the mother's lack of progress over a [five]-year period. We note that the law speaks in terms of "reasonable" efforts, not unlimited or even maximal efforts. In this case, DHR used reasonable efforts to rehabilitate the mother, and the juvenile court did not err in concluding that it would be unreasonable to prolong those efforts.'
" M.A.J. [v. S.F. ], 994 So.2d [280,] 292 [ (Ala. Civ. App. 2008) ]."

B.J.K.A. v. Cleburne Cty. Dep't of Human Res., 28 So.3d at 771-72.

I believe that in this case, as in B.J.K.A., supra, the juvenile court could have reasonably concluded that DHR made reasonable efforts toward reuniting the mother and the child. In 2015, during the third time that the child was removed from the mother's custody, the mother made no efforts to accept DHR's offered reunification services until the child had been in foster care for nine months. The mother was informed in January 2016 that the permanency plan for the child had changed, and DHR filed its termination petition in February 2016. However, the mother did not begin to cooperate with reunification services until May 2016. I note that the record indicates that the child was transferred to live with a potential adoptive resource in May 2016.

I further note that the mother had begun to take part in reunification services at the time of the termination hearing, but had not completed those services. The fact that the mother's participation in the earlier reunification process did not enable her to maintain custody of her child, together with the mother's failure to cooperate with DHR's services for so long in this case, supports the conclusion that the juvenile court properly determined that DHR had provided appropriate reunification services and that further services would not have been successful in preventing the termination of the mother's parental rights. B.J.K.A., supra.

Also, there was evidence from which the juvenile court could reasonably question the mother's credibility. The mother testified that the child slept in a room away from the multitude of cats in her small apartment in 2012 and that she no longer had any pets after that incident. However, the juvenile court was not required to believe that the child was not affected by the filth in the apartment that caused DHR to remove her from the mother's custody. Further, Reyes testified that there was cat urine and feces in the family's rental house, and that that house was in an unsanitary condition, in 2015; that evidence indicates that the mother's testimony that she no longer had animals was not truthful. The mother testified that, with the exception of the period in which she was pregnant with the child, she had consistently taken her mental-health medications. However, that claim is also questionable given the evidence regarding the mother's behavior in 2008 and Clemons's testimony that, in 2012, she did not believe that the mother was taking her prescribed medications.

"The juvenile court was in the best position to observe the witnesses while they testified and to evaluate their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986). 'Moreover, "[b]ecause the trial court has the advantage of observing the witnesses' demeanor and has a superior opportunity to assess their credibility, [an appellate court] cannot alter the trial court's judgment unless it is so unsupported by the evidence as to be clearly and palpably wrong." ' Ex parte Fann, 810 So.2d [631,] 636 [ (Ala. 2001) ] (quoting Ex parte D.W.W., 717 So.2d 793, 795 (Ala. 1998) )."

D.M. v. Walker Cty. Dep't of Human Res., 919 So.2d 1197, 1214 (Ala. Civ. App. 2005).

The juvenile court, which received ore tenus evidence and had the advantage of observing the demeanor of the mother and the other witnesses as they testified, could reasonably have determined that the mother's attempts to comply with the reunification goals were " 'late, incomplete and, therefore, unconvincing [ ] measures taken only in anticipation of the termination-of-parental-rights hearing.' " A.M.F., 75 So.3d at 1212 (quoting J.D. v. Cherokee Cty. Dep't of Human Res., 858 So.2d 274, 277 (Ala. Civ. App. 2003) ).

The majority opinion concludes that the evidence does not indicate that the child suffered harm from the mother's conduct. I note, first, that there is no statutory requirement that, in a termination-of-parental-rights case, DHR prove that a parent's conduct has harmed a child, and I question whether the majority opinion might be interpreted in the future as adding an additional requirement of demonstrable harm that is different from the factors set forth by our legislature in § 12-15-319, Ala. Code 1975, for a juvenile court to consider in an action involving the termination of parental rights. I note that this court has reviewed cases in which a child has been removed from a parent's custody because of issues such as a parent's drug use and that we have not required DHR or a juvenile court to wait to intervene until harm to a child has occurred or been demonstrated. DHR and the courts may, and have a duty to, seek to protect children from the serious potential for harm and to act to protect the best interests of children; I believe that, in most circumstances, DHR and the courts may act to prevent harm to a child.

I further note that I disagree with the conclusion that there has been no harm demonstrated in this case. At the time the child in this case was taken into foster care for the third time in August 2015, the child was 8 years old and had already spent a total of 40 months, or more than 3 years of her life, in foster care. At the time of August 1, 2016, termination hearing, the child was 9 years old and had spent 52 months, or more than 4 years (i.e., almost half her life) in foster care. The evidence supports a conclusion that, in 2008, the mother's erratic behavior left her unable to properly supervise the young child. The maternal grandmother, with whom the mother and the child resided, had not intervened to protect the child from the filth found repeatedly in the family's home environment. In spite of the mother's testimony that the family no longer had animals after the child had been removed from her custody in 2012, cat feces were listed as a part of the detritus that rendered the mother's house unsanitary in 2015, when the child was again taken into protective custody.

Given the facts, the applicable caselaw, and the presumption in favor of the juvenile court's judgment afforded after the juvenile court has had the advantage of receiving ore tenus evidence, I cannot agree with the majority that the mother has demonstrated that the juvenile court erred in determining that DHR had made reasonable efforts toward reunification.

The mother has not argued on appeal that the juvenile court erred in determining that there were no viable alternatives to the termination of her parental rights; accordingly, any such argument is waived. Ex parte Riley, 464 So.2d 92 (Ala. 1985). I note that the only relative identified as a possible relative resource by the mother or DHR was the maternal grandmother, with whom the mother and child have lived on all three occasions when the child was removed from the mother's custody.

I further conclude that the mother has failed to demonstrate error with regard to the other issues raised in her appeal. I would affirm the judgment of the juvenile court. Accordingly, I dissent.

Thomas, J., concurs.

      The father failed to appear before the juvenile court, and he has not appealed. Therefore, we will not discuss the petition or the judgment insofar as they relate to the father.

      DHR also presented evidence regarding the mother's mental illness. However, the undisputed evidence indicates that the mother was stable at the time of the trial. Furthermore, the juvenile court did not find that the mother's mental illness prevented her from properly caring for the child, although the juvenile court was required to consider that question. See Ala. Code 1975, § 12-15-319(a)(2).

      Several witnesses testified regarding the animals in the mother's apartment. Clemons said there were 45 cats, and the mother said there were 30 cats. The maternal grandmother testified that 28 cats were listed on a piece of paper provided to her at the time by animal-control officials.

      In explaining its reasons for not considering Davis's report, the juvenile court stated:
      "THE COURT: ... But I'm going to tell you right now, I'm going to give [Davis's report] no weight whatsoever. I don't consider her to have done anything other than get the mother to report something and spit it back. She didn't make any kind of an expert evaluation or-whether or not she's qualified to do a psychological evaluation, I don't even know. But she didn't do one, and the report she's given does not include anything about the test instruments she used. She explains to have used three different tools, and there's nothing in here about what the tools said. I mean, I've never seen a psychological report that is like this, so I'm giving it no weight."

      The mother testified that the in-home services provider had visited her home once and that, although she had completed the parenting classes, DHR or the in-home services provider "need[s] to watch to see if I am utilizing the-the tools that they've taught me."