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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 ...


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