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F.V.O. v. Coffee County Dep't of Human Res.

Alabama Court of Civil Appeals

December 7, 2012

F.V.O.
v.
Coffee County Department of Human Resources

Released for Publication August 14, 2014.

Appeal from Coffee Juvenile Court. (JU-09-149.01, JU-09-150.01, and JU-09-151.01). Paul Sherling, Trial Judge.

For Appellant: Mary Katherine Head, Elba.

For Appellee: Luther Strange, Atty. Gen., Sharon E. Ficquette, Gen. Counsel, Elizabeth L. Hendrix, Staff Atty. and Asst. Atty. Gen., Department of Human Resources.

MOORE, Judge. Bryan and Thomas, JJ., concur. Pittman, J., concurs in the result, without writing. Thompson, P.J., dissents, with writing. THOMPSON, Presiding Judge, dissenting.

OPINION

Page 12

MOORE, Judge.

F.V.O. (" the mother" ) appeals from separate judgments of the Coffee Juvenile Court (" the juvenile court" ) that, among other things, concluded that the most appropriate permanency plan for the mother's children, M.A.H., A.H., and B.H.V. (sometimes hereinafter referred to collectively as " the children" ) is adoption. We affirm.

On April 10, 2009, the Coffee County Department of Human Resources (" DHR" ) filed separate petitions in the Coffee Juvenile Court (" the juvenile court" ) asserting that the children were dependent and in need of care and supervision. In the petitions, DHR alleged that M.A.H. had been sexually molested by an unknown individual and that the children had been removed from the home of F.V.O. and E.H.A. (" the father" ); DHR requested an award of custody to protect the children while an investigation was completed. A shelter-care hearing was held on that same date, pursuant to which the juvenile court entered shelter-care orders for each of the children on April 10, 2009, awarding custody of the children to DHR.

On April 28, 2009, DHR filed a notice informing the juvenile court that, pending the completion of the investigation, the mother would have supervised visitation with the children and the father would have no visitation. On May 4, 2009, the juvenile court entered an order appointing an interpreter for the mother and the father, pursuant to their motion requesting the same. On that same date, DHR submitted a court report updating the juvenile court about the status of the case and recommending that custody remain with DHR until all safety threats had been resolved and a full investigation of the allegations had been completed.

On June 25, 2009, the children's guardian ad litem filed a motion to suspend the mother's and the father's visitation with the children; in that motion, the guardian ad litem alleged that the mother had been chastised during her supervised visitation for discussing the sexual-abuse allegations with the children, that the father had been arrested for sexual abuse, and that the mother's involvement in the abuse was still under investigation. The juvenile court entered orders on June 25, 2009, setting the dependency petitions for a final hearing and, among other things, appointing interpreters and attorneys for the mother and the father for the final hearing. On

Page 13

that same date, the juvenile court granted the guardian ad litem's motion to suspend visitation with the children by the mother and the father. After the filing of a number of motions to continue and other motions, on June 28, 2010, the juvenile court rescheduled the dependency hearing for August 25, 2010.

On August 27, 2010, the juvenile court entered orders finding, among other things, that the children were dependent; that reasonable efforts had been made to prevent removing the children from their home and that those efforts had failed; that placement in the home with the mother and the father would be contrary to the children's best interests; that reasonable efforts would continue to be made to reunite the children with the mother and to restore custody to her; and that reasonable efforts to reunite the father with the children were not required. The juvenile court set the case for dispositional review in February 2011.

A dispositional review hearing was held on February 2, 2011. On February 10, 2011, the juvenile court entered orders stating, among other things, that reasonable efforts had been made to reunite the mother with the children and that those efforts had failed but would continue to be made; that reasonable efforts to reunite the children with the father were no longer required; that the most appropriate permanency plan for the children at that time was relative placement; and that custody was to remain with DHR. The case was set for further review on August 4, 2011.

On May 10, 2011, DHR filed motions requesting that the juvenile court enter orders not requiring the termination of parental rights, although the children had been in DHR's care since April 10, 2009, because, it said, DHR had located a potential suitable relative resource -- Fi.V.O., the mother's brother -- and a home study was pending, which, DHR asserted, was a compelling reason not to pursue termination of parental rights.

On August 1, 2011, DHR submitted a permanency/review report, which, regarding placement of the children with Fi.V.O., stated: " Although the home is suitable, Coffee Co[unty] DHR is unable to recommend this relative as a resource due to the inability to verify employment, rental lease, and criminal background." On August 3, 2011, DHR submitted an amendment to that report, informing the court that, after that report had been filed, termination-of-parental-rights petitions had been filed by DHR " due to the relative resources not being suitable at this time. [DHR] will not recommend the relatives for placement." [1]

At the hearing on August 4, 2011, DHR requested that the permanency plan be changed to adoption with unidentifiable resources. Amanda Wallace, a foster-care worker for DHR, testified that DHR had exhausted its investigation of all potential relative resources. She stated that none of the four maternal relatives that had been identified had met the criteria for DHR to be able to approve them. She also testified that reunification with the mother had been unsuccessful, that the mother had been given goals to achieve to work toward reunification, and that those goals had not been met at that time. Wallace stated that, regarding the three maternal relatives in Bullock County, there was not enough living space for the children in the homes of those relatives. With regard to Fi.V.O., Wallace testified that she had conducted the home study and that the recommendation section of the home study had stated that Fi.V.O. and his

Page 14

family were willing to provide care for the children and that they had made adequate accommodations for the children. Wallace stated that DHR had neither approved nor denied Fi.V.O. and his family as a resource. She stated that Fi.V.O. and his wife had not been able to provide Social Security numbers for adequate background checks because they are not legal immigrants. She testified that she had received guidance from the State regarding what she was allowed to do with undocumented persons under the State's policy and DHR's policy and that, based on that guidance, she had determined that Fi.V.O. was required to provide the requested documentation.

Brandon Hardin, the director of DHR, testified that the mother had been " indicated" for inadequate supervision of the children. He testified that the father had been " indicated" for penetration and molestation of M.A.H. and that the father had pleaded guilty to " sexual abuse of a child less than twelve." Hardin testified that it had been determined by DHR that the mother could not protect the children.

The guardian ad litem testified that she was opposed to Fi.V.O.'s being a relative resource and that she had sent him a letter requesting that he provide her with a copy of his permanent-resident card, or green card, an employment certification, a work permit, a United States Visa, birth certificates for Fi.V.O. and the mother, an employer eligibility verification, a W2 form or income-tax return to establish income, his driver's license, his vehicle insurance, and his lease agreement. She testified that that information is the same information that DHR would need in order to run an adequate background check to determine whether Fi.V.O. had any history of abuse or neglect. The guardian ad litem also stated that she had suggested that she might ask the United States Immigration and Customs Enforcement agent for the area to make efforts to have Fi.V.O. and other members of the mother's family deported. She stated that, pursuant to the law that was in effect, she thought there would be problems with Fi.V.O.'s being a resource in this case. She testified that she believed that Fi.V.O. might not be presenting himself as a resource at the time of the trial because of the possibility that he and his family might be deported.

The juvenile-court judge stated at the close of the hearing that " reasonable efforts shall no longer be required pursuant to § 12-15-312 (c) (1) of the Code of Alabama as to the mother." Thereafter, on January 3, 2012, the juvenile court entered judgments stating, among other things, that reasonable efforts had been made to reunite the mother with the children and that those efforts had failed; that reasonable efforts to reunite the father with the children were no longer required; that the most appropriate permanency plan was adoption; and that custody was to remain with DHR. The juvenile court set the cases for review on February 28, 2012. On January 17, 2012, the mother filed notices of appeal from the juvenile court's January 3, 2012, judgments to this court. On January 19, 2012, the juvenile court entered orders stating that, pursuant to Rule 28(A)2, Ala. R. Juv. P., there was an adequate record for purposes of an appeal and requiring the Chief Juvenile Probation Office to forward a computer disk containing a recording of the proceeding held on August 4, 2011, to a designated court reporter. On January 23, 2012, the mother filed a motion, referencing all three case numbers, to amend, requesting the juvenile court to amend its January 19, 2012, judgments to require the designated court reporter to be provided with recordings of all court proceedings held in the case; the juvenile court denied the mother's motion on January 26, 2012. On February 24,

Page 15

2012, the mother filed a motion in this court requesting an order requiring that all recordings from all proceedings be forwarded to the court reporter to be transcribed and added to the record on appeal. On April 3, 2012, this court granted the mother's motion to supplement the record with the transcripts of all proceedings.

The mother raises the following issues on appeal: (1) that the juvenile court erred in finding that adoption is the most appropriate permanency plan for the children and (2) that the juvenile court erred in finding that DHR had made reasonable efforts to reunite the mother with the children.

Before we proceed to the issues raised by the mother on appeal, we first consider whether we have jurisdiction over this appeal. " Jurisdictional matters are of such importance that a court may take notice of them ex mero motu." McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App. 2004). In Ex parte T.C., 96 So.3d 123 (Ala. 2012), our supreme court construed § 12-15-601, Ala. Code 1975,[2] as providing that not " all orders in juvenile proceedings [are] appealable." 96 So.3d at 130. Rather, according to Ex parte T.C., the legislature, by changing the wording of former § 12-15-120, Ala. Code 1975, when replacing it with current § 12-15-601, did not intend to alter the prior law that only judgments considered " sufficiently final," 96 So.3d at 126 n.1, would support an appeal. Thus, the immediate question concerns whether the judgments in this case, which altered the permanency plan for the children from relative placement to adoption by an unidentified resource, constitute " sufficiently final" judgments in these dependency proceedings to invoke the appellate jurisdiction of this court.

Juvenile courts are required by statute to conduct hearings at least annually for dependent children who have been removed from their home and placed in the foster-care system. See § 12-15-315(a), Ala. Code 1975. In those " permanency hearings," DHR presents to the juvenile court its plan for the permanent custodial disposition of the child and the juvenile court then determines[] the permanency plan for the child." '[3] Id. As recognized by this court, " issues such as DHR's plan to reunify a family, the reasonableness of DHR's efforts to rehabilitate a parent, and the possible placement of a child with a relative are meant to be aired and resolved at a permanency hearing." D.P. v. Limestone Cnty. Dep't of Human Res., 28 So.3d 759, 763 (Ala.Civ.App. 2009).

In this case, the juvenile court conducted a permanency hearing, after which it determined, among other things, that reasonable efforts to reunite the mother with the children had failed[4] and that the

Page 16

most appropriate permanency plan was adoption as opposed to relative placement. As Presiding Judge Thompson correctly notes in his dissent, __ So.3d at __ n.14, the juvenile court did not expressly state in its judgments that DHR was relieved of continuing to make reasonable reunification efforts in regard to the mother as it had orally indicated at the close of the August 4, 2011, hearing. See In re Adoption of John Doe, 1982- NMCA 094, 98 N.M. 340, 348, 648 P.2d 798, 806 (N.M. Ct. App. 1982) (" A trial court's oral statements as to the basis for its ruling, made before judgment is entered, and not embodied therein, cannot be considered part of the judgment." ). However, up to that point, the juvenile court had indicated that reasonable efforts to reunite the mother with the children had failed but had expressly ordered that those efforts were to continue. In the January 3, 2012, judgments from which this appeal is taken, the juvenile court did not order the continuation of family-reunification efforts. In light of the consistent language used by the juvenile court in its prior orders, that omission bespeaks an intention on the part of the juvenile court that DHR would no longer be required to make reasonable efforts to reunite the children with the mother. See Boyd v. Franklin, 919 So.2d 1166, 1171 (Ala. 2005) (quoting Price v. Price, 360 So.2d 340, 343 (Ala.Civ.App. 1978)) (" 'If there is uncertainty and ambiguity in a ... judgment, the [reviewing] court must construe it so as to express the intent of the ... trial judge.'" ); see also Reeder v. Reeder, 356 So.2d 202, 204 (Ala.Civ.App. 1978) ( " Where a judgment or decree is so obscure as to not clearly express the exact determination of the court, reference may be had to pleadings and other proceedings to which it refers, and it should be interpreted in light of the pleadings and the entire record." ).

Also, in its prior orders, the juvenile court had approved a permanency plan calling for the return of the children to the mother or placement of the children with relatives. When a juvenile court determines that the appropriate permanency plan is to return a child to a parent, DHR must make reasonable efforts to rehabilitate the parent and remove any obstacles to family reunification. See § 12-15-32(b), Ala. Code 1975; see also H.H. v. Baldwin Cnty. Dep't of Human Res., 989 So.2d 1094, 1098 (Ala.Civ.App. 2007) (opinion on return to remand) (per Moore, J., with two Judges concurring in the result). When a juvenile court determines that it is in the best interest of a child to be placed in the " permanent" custody of a relative, the juvenile court necessarily determines that it is in the best interest of that child to preserve some beneficial aspect of the parent-child relationship by not terminating parental rights. See D.M.P. v. State Dep't of Human Res., 871 So.2d 77 (Ala.Civ.App. 2003) (plurality opinion) . Continued efforts at parental rehabilitation would be consistent with a permanency plan seeking placement of a child with a relative. See id. However, when a juvenile court orders that a child be placed for adoption with an unidentified resource, the law requires DHR to file a petition to terminate the parental rights of the parents of the child. See 12-15-315(a) (2), Ala. Code 1975 (stating that DHR " shall" file a petition to terminate parental rights when the permanency plan calls for adoption by an unidentified resource or a foster parent).[5] Thus, unless the juvenile court provides for concurrent

Page 17

permanency planning, see § 12-15-315(b), Ala. Code 1975 (authorizing concurrent permanency planning),[6] which the judgments at issue in this appeal did not do, the approval of a permanency plan of adoption, without any express direction for DHR to continue to make reasonable family-reunification efforts, necessarily implies that the juvenile court has turned its focus away from family reunification and toward the severance of the parent-child relationship.[7] Accordingly, the judgments at issue in this case relieved DHR of continuing to make reasonable efforts to rehabilitate the mother or to reunite her with the children.

The judgments also relieved DHR of continuing to make efforts to locate relatives " qualified to receive and care for the child[ren]" § 12-15-314(a)(3)(c), Ala. Code 1975. When a permanency plan establishes a goal of relative placement, the juvenile court and DHR have a duty to make reasonable efforts to accomplish that goal. See § 12-15-312(b), Ala. Code 1975. In this case, DHR presented evidence indicating that, after nearly three years of intensive investigation, it could not locate a willing relative fit to care for the children. After receiving that evidence, the juvenile court changed the previous permanency plan from placement with a relative to adoption. That determination implies that the juvenile court found that none of the relatives proffered by the mother would be suitable custodians for the children or that it would otherwise be in the best interests of the children to be adopted by an unidentified resource rather than to be placed in a relative's custody. As such, the juvenile court, in effect, directed DHR to cease its efforts to locate a qualified relative to receive the children and to redirect its efforts toward adoption with a termination of the mother's parental rights.

Thus, the judgments in this case conclusively determined the two issues the

Page 18

mother takes issue with on appeal: (1) that adoption serves the best interests of the children as opposed to any other custodial alternative and (2) that DHR had made reasonable efforts to rehabilitate the mother. The judgments further, in effect, terminated the dependency proceedings,[8] with any further action regarding the custody of the children contemplated to occur within the framework of the termination-of-parental-rights proceedings, completely separate civil actions. See M.M. v. B.L., 926 So.2d 1038, 1041 (Ala.Civ.App. 2005).

" A final judgment is one 'that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.' Bean v. Craig, 557 So.2d 1249, 1253 (Ala. 1990). See also McCollough v. Bell, 611 So.2d 383, 385 (Ala.Civ.App. 1992) ('Any decision, order, or [judgment] of the trial court which puts an end to the proceedings between the parties to a cause in that court is final and may be reviewed on appeal.'). 'A final judgment is one that completely adjudicates all matters in controversy between the parties.' Wilson v. Glasheen, 801 So.2d 848, 849 (Ala.Civ.App. 2001) (emphasis added)."

Wilkerson v. Wilkerson, 868 So.2d 1119, 1121 (Ala.Civ.App. 2003). The judgments at issue in this appeal bear all the indicia of a final judgment.

The mother cannot raise these same issues in an appeal from judgments entered in the termination-of-parental-rights action, as Presiding Judge Thompson argues in his dissent. __ So.3d at __. In M.H. v. Jefferson County Department of Human Resources, 42 So.3d 1291, 1293 (Ala.Civ.App. 2010), this court unanimously held that a mother could not raise in an appeal of a judgment terminating her parental rights any error made by a juvenile court in relieving DHR of making reasonable efforts at family reunification in an earlier dependency proceeding. Likewise, this court has also recently recognized that the legislature specifically intended that issues regarding the viability of placing a child with relatives ordinarily should be conclusively decided at a permanency hearing, D.P., supra, not during a trial on a petition for termination of a parent's parental rights. See also A.D.B.H. v. Houston Cnty. Dep't of Human Res., 1 So.3d 53, 69-70 (Ala.Civ.App. 2008) (Moore, J., concurring in part and concurring in the result) (arguing that consideration of placing a dependent child with a relative should never be decided in the adjudicatory phase of a termination-of-parental-rights case, but must take place in a permanency

Page 19

hearing). Under the doctrines of collateral estoppel and res judicata, issues conclusively decided between the same parties in prior litigation cannot be collaterally attacked in a subsequent action. See generally Ex part LCS Inc., 12 So.3d 55, 58 (Ala. 2008).

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

" If the juvenile court finds from clear 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 renders them 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 parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
" ...
" (7) 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."

Section 12-15-319 requires a juvenile court, when deciding whether grounds for termination exist, to consider whether DHR's reasonable parental-rehabilitation efforts have failed. However, nothing in § 12-15-319 requires the juvenile court to relitigate the issue of the reasonableness of DHR's efforts during the adjudicatory phase of a termination-of-parental-rights proceeding. By that point, in an ordinary case like this case, the legislature intended that any questions regarding the reasonableness or success of HR's rehabilitation efforts would have long ago been decided in a permanency hearing. D.P., supra. Although a juvenile court must consider the failure of reasonable family-reunification efforts, it should do so only by taking judicial notice of its prior judgment. See generally Ex parte State Dep't of Human Res., 890 So.2d 114 (Ala. 2004) (authorizing juvenile court to take judicial notice of its own records but not of court reports containing inadmissible hearsay evidence). Otherwise, allowing a parent to raise the issue at such a late stage would not only be duplicative and a waste of judicial resources but could cause an unwarranted delay in the final determination of the termination-of-parental-rights petition. See T.V. v. B.S., 7 So.3d 346, 361 (Ala.Civ.App. 2008) (Moore, J., concurring in the result).

In Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990), the supreme court held that, under former § 26-18-7, Ala. Code 1975, the predecessor statute to § 12-15-319, a juvenile court could not terminate a parent's parental rights without exhausting viable alternatives. After Beasley was decided, our legislature amended the former Alabama Juvenile Justice Act, former 12-15-1 et seq., Ala. Code 1975, to comply with the federal Adoption and Safe Families Act, 42 U.S.C. § 671 and § 675, by, among other things, mandating that juvenile courts decide the merits of relative placement at permanency hearings. See A.D.B.H., 1 So.3d at 69 (Moore, J., concurring in part and concurring in the result). Those legislative changes did not abrogate the need for juvenile courts to exhaust viable alternatives, which is mandated by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, see Roe v. Conn, 417 F.Supp. 769, 779-80 (M.D. Ala. 1976), but established a new judicial procedure for implementing that standard, at least for children in foster-care

Page 20

placement. Instead of awaiting the adjudicatory hearing to determine whether placement with a relative could be accomplished as a viable alternative to termination of parental rights, the legislature decided that the issue would be decided in a separate permanency hearing to take place before the termination-of-parental-rights adjudicatory hearing. See § 12-15-315. Thus, contrary to Presiding Judge Thompson's dissent, __ So.3d at __, it would not be " premature" to consider any issue regarding relative placement on an appeal from a permanency judgment; it would, in fact, be too late to consider those issues on an appeal from a judgment terminating a parent's parental rights.

In D.P., this court held that a dependency order should be considered final and appealable if it decides crucial issues regarding the fundamental rights of parents that would otherwise evade appellate review. 28 So.3d at 764. The judgments in this case decide issues that adversely affect the fundamental rights of the mother. Unless we allow this appeal, the mother generally will be precluded from raising those same issues in any subsequent appeal. Hence, the holding in D.P. only reinforces our conclusion that the judgments at issue are final and appealable. We note Presiding Judge Thompson's concern that allowing appeals from permanency-hearing judgments may slow down the progress toward termination of parental rights in some cases. __ So.3d at __. However, we cannot overlook the stated legislative intent that certain issues be adjudicated in permanency hearings or ignore that parents have a statutory right to raise those issues on appeal from the judgment in which they were decided, see § 12-15-601, and not from a later judgment in a totally separate action.[9]

Turning to the merits, the mother first argues on appeal that the juvenile court erred in determining that adoption is the most appropriate permanency plan for the children because, she asserts, that finding is not supported by the evidence. Thus, like in L.M. v. Jefferson County Department of Human Resources, 68 So.3d 859 (Ala.Civ.App. 2011), the mother challenges the sufficiency of the evidence; however, also like in L.M., " the juvenile court did not make any specific findings of fact in its judgment and the mother failed to file a postjudgment motion challenging the sufficiency of the evidence." 68 So.3d at 860-61.[10] This court stated in L.M.:

" In New Properties, L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala. 2004), our supreme court held: '[I]n a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.' Because the mother failed to 'move for a new trial or otherwise properly raise before the [juvenile] court the question relating to the sufficiency or weight of the evidence,' we must conclude that she failed to preserve her argument for review by this court."

Page 21

68 So.3d at 861 (footnote omitted).[11] Like in L.M., the mother in the present case failed to preserve her argument for review by this court.

The mother also argues on appeal that the juvenile court erred in concluding that DHR had made reasonable efforts to reunite the mother with the children. This argument is also based on the alleged insufficiency of the evidence, and the mother failed to file a postjudgment motion challenging that insufficiency before the juvenile court. Thus, the mother failed to preserve this argument for review as well. See L.M., supra.

The juvenile court's judgments are affirmed.

AFFIRMED.

Bryan and Thomas, JJ., concur.

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

Thompson, P.J., dissents, with writing.

DISSENT

THOMPSON, Presiding Judge, dissenting.

I must respectfully dissent. I conclude that the mother's appeal is taken from a nonfinal order and, therefore, that this appeal should be dismissed. See Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226, 229 (Ala.Civ.App. 1998) (a nonfinal judgment will not support an appeal).

On August 27, 2010, the juvenile court found the children to be dependent and ordered that reunification efforts were not required to be made with regard to the father. In February 2011, the juvenile court conducted a permanency hearing, and, on February 10, 2011, it entered an order in which it, among other things, determined that reasonable efforts toward reunification had been made with regard to the mother, that those efforts had failed, but that DHR was to continue to provide reunification services to the mother.

DHR investigated placing the child with Fi.V.O., the child's maternal uncle. It is undisputed that Fi.V.O. is an undocumented alien, that he could not provide DHR social workers with valid identification or verification of his rental agreement or income, and that DHR could not perform a background check on him.

The juvenile court conducted an ore tenus review hearing on August 4, 2011. At that hearing, the children's guardian ad litem indicated that she opposed placing the children with Fi.V.O. Also at that hearing, DHR informed the juvenile court that it had changed its permanency goal from placing the children with a relative to seeking the termination of the parents' parental rights. The juvenile court noted during the hearing that on August 3, 2011, the day before the hearing, DHR had filed petitions seeking to terminate the parents' parental rights to the children. Those petitions are not contained in the record on appeal in this matter.

Page 22

In the January 3, 2012, orders from which this appeal is taken, the juvenile court again found that reasonable efforts to reunite the children with the mother had been made but that those efforts had failed. In addition, the juvenile court found that " [t]he most appropriate permanency plan is adoption" and that the children were to remain in DHR's custody. I conclude that a finding of dependency was implicit in those January 3, 2012, orders. See L.L.M. v. S.F., 919 So.2d 307, 311 (Ala.Civ.App. 2005) (" Given the factual findings contained in the ... judgment, we conclude that a finding of dependency was implicit in the trial court's judgment." ); and M.B. v. R.P., 3 So.3d 237, 246 (Ala.Civ.App. 2008) (same).

This court has held that an order finding a child dependent but not modifying the custodial arrangement for the child will not support an appeal " [b]ecause a change in the disposition of the child was not at issue, [and, therefore,] the juvenile court's order was not a final, appealable judgment." Ex parte K.S., 71 So.3d 712, 715 (Ala.Civ.App. 2011); see also Ex parte T.C., 96 So.3d 123, 129-30 (Ala. 2012). In this case, the custodial arrangement for the children has not changed; the order specified that the children were to remain in DHR's custody in foster care. Regardless, the main opinion concludes that the juvenile court's January 3, 2012, orders are " final and appealable," and it relies, in part, on D.P. v. Limestone County Department of Human Resources, 28 So.3d 759 (Ala.Civ.App. 2009). __ So.3d at __.

In D.P., supra, the juvenile court determined that the permanency plan for a dependent child was " return to parent," and it relieved DHR of the requirement that it work toward reunification of the father and the child. This court held that the order was sufficiently final to support the appeal because it " could" result, in the future, in depriving a parent of the fundamental right to the custody of his or her child. D.P., 28 So.3d at 764. In later cases relying on D.P., supra, this court continued to conclude that orders relieving DHR from its obligation to make reunification efforts were appealable. See E.E.R. v. Marion County Dep't of Human Res.., 89 So.3d 792, 793 n.1 (Ala.Civ.App. 2012); L.M. v. Jefferson Cnty. Dep't of Human Res., 68 So.3d 859 (Ala.Civ.App. 2011); and M.H. v. Jefferson Cnty. Dep't of Human Res., 42 So.3d 1291, 1293 (Ala.Civ.App. 2010); see also L.S. v. Shelby Cnty. Dep't of Human Res., 28 So.3d 804, 805 (Ala.Civ.App. 2009) (relying on D.P. to conclude that an appeal from a permanency order was final). As is explained below, I now believe that those cases were wrongly decided,[12] and, therefore, I believe that the main opinion has erred in relying on D.P., supra, in concluding that the orders at issue in this appeal are sufficiently final to support the appeal.

It is clear that our legislature did not intend that a juvenile-court order that approves a change in a permanency plan be considered sufficiently final to support an appeal. Section 12-15-312(c) of the Alabama Juvenile Justice Act (" AJJA" ), § 12-15-101 et seq., Ala. Code 1975, sets forth circumstances under which a juvenile court may determine that DHR is not required to make reasonable efforts to reunite a dependent child with his or her parent. The AJJA then provides:

" If reasonable efforts are not made with respect to a child as a result of a determination

Page 23

made by a juvenile court in situations as described in [§ 12-15-312(c) and (d)], a permanency hearing ... shall be held for the child within 30 days after the determination. ..."

§ 12-15-312(e), Ala. Code 1975 (emphasis added).[13] Thus, the legislature intended that the juvenile court conduct a permanency hearing shortly after making a finding that reasonable efforts toward reunification are no longer required. The provision for the hearing under § 12-15-312(e) is inconsistent with an intention by the legislature that a determination relieving DHR of further reunification efforts be appealable. An appeal of an order relieving DHR of making reunification efforts could not be completed within 30 days, and, therefore, allowing a party to take such an appeal would nullify the provision in § 12-15-312(e) providing for the expeditious permanency hearing following a determination that reasonable efforts at reunification are no longer required. See Ex parte Watley, 708 So.2d 890, 892 (Ala. 1997) (It is presumed that the legislature did not do a useless thing in enacting a statute.). Given the foregoing and the language of § 12-15-312(e), I cannot agree with the conclusion in D.P., supra, and the other decisions cited earlier in this writing that a juvenile-court order relieving DHR of the responsibility of providing reunification services is sufficiently final to support an appeal to this court. I conclude that the main opinion erred in relying on D.P., supra, in reaching its holding in this appeal.[14]

Page 24

Similarly, I also believe that the AJJA demonstrates that the legislature did not intend that all orders approving a change to DHR's permanency plan for a dependent child are appealable. Section 12-15-315, Ala. Code 1975, requires that DHR submit a permanency plan for a dependent child to the juvenile court within 12 months of the child's being placed in foster care and every 12 months thereafter. In addition, that section dictates that a juvenile court conduct a permanency hearing every 12 months. § 12-15-315 (a). That statute specifies that its purpose is " to ensure that a permanent plan is prepared by the Department of Human Resources and presented to the juvenile court within 12 months of the placement of any child in foster care and no less frequently than every 12 months thereafter" and that " [t]he purpose of the permanency hearing shall be to determine the permanency plan for the child." § 12-15-315(a), Ala. Code 1975. Thus, the stated legislative intent of § 12-15-315(a) establishes that that section is administrative and designed to ensure that DHR and the juvenile court regularly review each action involving a dependent child so that no child is inadvertently left to languish in the foster-care system without regular and periodic reviews of his or her circumstances. See, e.g., Ex parte W.T.M., 851 So.2d 55, 65 n. 6 (Ala.Civ.App. 2002) (Murdock, J., dissenting) (" The intent expressed in § 12-15-62(c) [, the predecessor to § 12-15-315(a),] is to ensure that DHR develops and proposes a timely permanent plan for a child who is placed in foster care ...." )

In this case, the record indicates that DHR had submitted a permanency plan to the juvenile court in compliance with § 12-15-315(a). The effect of the juvenile court's January 3, 2012, orders was to agree that DHR had taken the necessary steps to ensure the protection of the children's interests under the AJJA and that DHR had properly reached its decision to change its administrative plan to seek the adoption of the children in this case. I cannot agree with the main opinion that the juvenile court's January 3, 2012, orders approving the change in DHR's permanency plan, reached after following the requirements of the AJJA and its own internal administrative guidelines, amounted to rulings that would so affect fundamental rights as render those orders sufficiently final to support an appeal. Further, our supreme court's recent decision in Ex parte T.C., supra, discussed below, mandates against an interpretation finding an order approving a change in a permanency plan to be sufficiently final to support an appeal.

In Ex parte T.C., supra, our supreme court affirmed this court's holding in T.C. v. Mac.M., 96 So.3d 115 (Ala.Civ.App. 2011), that the order at issue was a pendente lite dependency order and, therefore, that that interlocutory order was incapable of supporting the appeal. In doing so, our supreme court rejected the argument by the father, which incorporated the reasoning of the dissent in T.C. v. Mac.M., supra, that the dependency finding alone rendered the juvenile court's order sufficiently final to support the appeal.[15] Our supreme court concluded,

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among other things, that the specification in § 12-15-601 that the procedures for appeals shall be pursuant to the rules of procedure adopted by the supreme court indicated the legislature's intent that appeals from juvenile-court orders continue to be taken only from final orders or judgments.[16] The supreme court explained:

" As the Court of Civil Appeals stated in its opinion dismissing the father's appeal: '[T]he legislature, in enacting the [2008] AJJA, did not alter the procedure for appeals from the juvenile court to allow for appeals from nonfinal orders of the juvenile court; rather, it left in place the well established procedure by which final orders and judgments of the juvenile court may be appealed. Thus, Rule 28, Ala. R. Juv. P., continues to govern the detailed procedure for appeals from the juvenile court, and that rule expressly authorizes appeals only from " final orders, judgments, or decrees of the juvenile court." ' [T.C. v. Mac.M.,] 96 So.3d at 115."

Ex parte T.C., 96 So.3d at 129.

In Ex parte T.C., supra, our supreme court also agreed with the assertion of the dissent in T.C. v. Mac.M., supra, that dependency findings and other juvenile-court determinations that are interlocutory sometimes impact a parent's fundamental rights. Regardless, the supreme court determined, not all orders that might affect fundamental rights are appealable, and it stated that allowing appeals of interlocutory orders in juvenile cases defeats the goal of the AJJA to reunite a parent and child expeditiously. See Ex parte T.C., 96 So.3d at 128-29 (" [T]he goal of both the former AJJA and the 2008 AJJA [is] reuniting parents and children as quickly as possible." ). The court stated:

" [I]f we were to conclude that the legislature was providing for appeals of all interlocutory orders in juvenile proceedings, those appeals would include orders setting hearings and trials, discovery, venue, and numerous other orders that are routinely entered by juvenile courts, along with other nonfinal orders entered in juvenile proceedings, which would include, but certainly not be limited to, orders in delinquency cases, probable-cause orders in juvenile involuntary commitments, and detainment orders. As the Court of Civil Appeals points out, allowing appeals from nonfinal orders would slow the resolution of juvenile cases, and it is foreseeable that a party could appeal every adverse nonfinal order as a dilatory tactic. Generally, delaying juvenile proceedings for interlocutory appeals would be counter to a juvenile's best interest. Had the legislature intended to provide for appeals from an order finding a child dependent, it could have easily done so without the unintended consequences of allowing all nonfinal orders in juvenile cases to be appealable. ... [W]hen the legislature enacted the 2008 AJJA (revising, reorganizing, and repealing parts of the former AJJA) it may not have referred to the right to appeal from a 'final' judgment

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or order, but merely referred to the right to appeal a judgment or order. That language choice, however, does not reflect the legislature's intent to make all orders in juvenile proceedings appealable."

Ex parte T.C., 96 So.3d at 129-30.

Thus, a dependency finding alone, one that is not coupled with an order changing custody of the child, is not an order that will support an appeal. Ex parte T.C., supra; Ex parte K.S.; and C.L. v. D.H., 916 So.2d 622, 624-26 (Ala.Civ.App. 2005). I cannot conclude that, under that authority, an order approving an administrative agency's plan to take further action in compliance with a governing statute and its own internal administrative regulations would be treated as final so as to support an appeal. To paraphrase our supreme court, " [h]ad the legislature intended to provide for appeals from an order [approving a change in DHR's permanency plan for the child], it could have easily done so." Ex parte T.C., 96 So.3d at 129. However, the legislature did not provide for such appeals. Accordingly, I disagree with the main opinion's conclusion that the juvenile court's approval of the change in DHR's permanency plans for the children constituted a final order or judgment.

I also conclude that the main opinion's consideration of this appeal on the merits exemplifies the bases for the concerns expressed by our supreme court in Ex parte T.C., supra, concerning the delay that will result in juvenile actions because of the review of interlocutory orders. In this case, the parents first provided the name of Fi.V.O., the relative resource whose suitability was litigated in the review hearing, at the " eleventh hour" ; at the time that resource was identified, the children had been in foster care for almost two years. DHR conducted a home study, and, because of concerns that included the immigration status of Fi.V.O. and the resulting inability to perform a background check on him, DHR rejected that resource and decided to seek the termination of the parents' parental rights. This court's consideration of the mother's challenge to the approval of the DHR's plan to seek to terminate her parental rights has halted DHR's ability to actually proceed with that plan in the juvenile court.[17] Thus, this court's consideration of this appeal as having been taken from a final order will further delay permanency for the children. In Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990), our supreme court, in considering an action seeking the termination of parental rights, stated that a parent's rights " deserve the law's utmost protection against unwarranted interference" from the State. I agree that parental rights should be protected, but, in this case, the main opinion does so at the expense of the best interests of the children. In its recent discussion in Ex parte T.C., supra, in which it discouraged the practice of allowing interlocutory appeals in juvenile actions, our supreme court concluded that such appeals could be used by a parent as a dilatory tactic, which " would be counter to a [child's] best interest." Ex parte T.C., 96 So.3d at 129 (emphasis added).

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Also, the issues raised on appeal by the mother are relevant to the issues she could raise had her parental rights been terminated. I disagree with the main opinion's assertion that the juvenile court's rulings in the January 3, 2012, orders would constitute rulings that would preclude the juvenile court from considering, on the grounds of res judicata or collateral estoppel, the issues addressed in those nonfinal orders. A nonfinal order will not serve as a basis for those theories. See Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 796 (Ala. 2007) (one of the elements of collateral estoppel is that the litigation of the issue be necessary to the judgment); Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330, 339 (Ala. 2006) (quoting Acevedo-Garcia v. Monroig, 351 F.3d 547, 560 (1st Cir. 2003) (" ' [S]ince separate trials do not individually produce final judgments, any attempt to apply collateral estoppel to the remaining ... trials would be invalid under a Rule 42(b) regime.'" )); and Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala. 1998) (one of the elements of res judicata is the existence of a final judgment on the merits).[18]

For the foregoing reasons, I must respectfully dissent.


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