Juvenile Court, JU-09-300067.05
PETITION FOR WRIT OF MANDAMUS
("the child") is the daughter of J.V. ("the
father"). The Marshall County Department of Human
Resources ("DHR") has filed with this Court a
petition for a writ of mandamus by which it seeks an order
directing the Marshall Juvenile Court to set aside or vacate
its order of April 3, 2016, addressing the transfer of legal
custody and physical custody of the child to the
child was born in October 2006. The pertinent facts, as
summarized in an earlier Court of Civil Appeals' opinion
involving the same parties, are as follows:
"In 2009, the Marshall County Department of Human
Resources ('DHR') removed J.J.V. ('the
child') from the custody of M.M.T. ('the
mother'). At that time, the child's father, J.V.
('the father'), was living in Florida, where the
child and the mother had resided until the mother left the
father. The father came to Alabama to locate
the mother and the child only to learn that DHR had removed
the child from the mother's home.
"The father, without the aid of counsel, attempted to
work with DHR, and he briefly reunited with the mother.
However, when a DHR caseworker informed him that the child
would not be returned to the parents if they resided
together, the father left the mother's residence. The
father retained an attorney and secured supervised visitation
with the child in the fall of 2010. In December 2010 and
January 2011, the father was granted unsupervised visitation
with the child; he had a total of five unsupervised visits
with the child.
"On January 8, 2011, a few hours after the child had
returned from an unsupervised visit with the father, the
child's foster parents contacted the child's DHR
caseworker, who was, at that time, Tracy Burrage. B.B.
('the foster father') told Burrage that the child had
reported that the father had 'hurt her butt.' At
Burrage's instruction, the foster parents took the child
to the emergency room, which then referred the child to
Crisis Services of North Alabama for an examination by a
forensic nurse examiner.
"After the accusation, the father's visitation was
changed to supervised visitation. The child cried and said
that she did not want to attend visits with the father. When
at the visits, the child barely interacted with the father.
"In October 2011, the father was charged with sexual
abuse. He was arrested and placed in the Marshall County
jail, where he remained for approximately 18 months. DHR
filed a petition to terminate the father's parental
rights; however, the juvenile court denied that petition. DHR
appealed, and this court reversed the juvenile court's
judgment declining to terminate the father's parental
rights and remanded the cause for the juvenile court to
reconsider DHR's termination-of-parental-rights petition
based on the evidence already adduced at trial, indicating in
our opinion that the juvenile court had perhaps mistakenly
believed that late perfection of service of process on the
father had prevented the juvenile court from considering the
termination-of-parental-rights petition at the time of the
termination-of-parental-rights trial. See Marshall Cty.
Dep't of Human Res. v. J.V., 152 So.3d 370 (Ala.
Civ. App. 2014). On remand, the juvenile court entered
another judgment declining to terminate the father's
parental rights; no appeal was taken from that
Marshall Cty. Dep't Human Res. v. J.V., 203
So.3d 1243, 1244-45 (Ala. Civ. App. 2016)("J.V.
August 2013, the father agreed to submit to a polygraph
examination in the criminal proceeding arising from the
sexual-abuse charge. The results from that examination
indicated that the father provided truthful answers to the
questions posed to him. Based on those results, the
sexual-abuse charge against the father was dismissed with
prejudice on February 11, 2014. Thereafter, the father, who
was an illegal immigrant, was transferred to a Louisiana
father was released from the detention facility in September
2014 after his immigration status was changed to "an
alien lawfully admitted for permanent residence." 8
U.S.C. § 1229b(b)(1). The father then moved to Canton,
Georgia, where his sister resided. The Court of Civil Appeals
in J.V. I summarized the procedural history as
"The father filed a petition in the juvenile court on
November 6, 2014, seeking an award of custody of the child.
After a three-day hearing in December 2014, the juvenile
court entered an order on December 29, 2014, stating the
"'1. This matter is set for further review on
disposition on January 20, 2015, at 9:00 a.m.
"'2. At that time, DHR shall:
"'a. Present a plan to transition physical custody
of the child to her father by the time the child completes
her spring semester of school. This plan shall include the
name of a licensed psychologist near the father's
residence in Georgia who can counsel the child and the
father. This plan shall also include a proposal of gradually
increased visitation, which visitation schedule shall take
into account the father's work schedule.
"'b. Present a home study of the father's
residence in Georgia.
"'3. Between now and January 20, 2015, DHR shall
ensure that the father is able to visit with his child as
frequently as once per week for a period of no less than two
hours. These visitations may be supervised by DHR. The
visitations shall be at times when the father is not working.
The foster parents shall not attend the visitations or
provide transportation to the visits.
"'4. DHR shall pay the costs of any home study, and
until further Orders, any and all counseling fees.
"'5. On January 20, 2015, the father shall present
photos of his house -- both inside and out. At that time the
father shall identify the school the child would attend,
should the child live in the house. Also, the father should
describe the provisions he will make for child care when he
is at work and the child is not in school.'"
J.V. I, 203 So.3d at 1245-46.
January 20, 2015, review hearing was rescheduled. On March
27, 2015, the juvenile court entered an order incorporating
the transition plan that had been created by the parties and
setting the matter for further review on May 12, 2015. The
March 2015 order further stated:
"'It is the intention of the parties and Court upon
the receipt of an approved Home Study from Georgia that the
father's visits with his child shall transition to
supervised visitation in his home. The Marshall County
Department of Human Resources has agreed to provide a Spanish
interpreter in addition to an in home service provider. The
father's visitation shall be as [set out in the following
"'... On June 12, 2015, physical custody of the
minor child shall be placed with her father pending further
Order of the court.
"'... The child and father shall continue to
participate and cooperate with counseling with Dr. Eassa, a
J.V. I, 203 So.3d at 1246. The Court of Civil
"After the review hearing was held on May 12, 2015, an
amended order regarding the transition plan was entered on
May 18, 2015. The May 2015 order, like the March 2015 order,
set out the specific transition plan and stated that the
child would be permanently transitioned to the father's
physical and legal custody no later than July 27, 2015. The
May 2015 order also contained the following provisions
referencing a home study:
"'3. It is the intention of the parties and Court
upon the receipt of an approved Home Study from Georgia
through the Interstate Compact [on the Placement of Children
('ICPC'), codified at Ala. Code 1975, § 44-2-20
et seq.], that the father's visits with his child shall
transition to supervised visitation in his home.
"'4. On July 27, 2015, physical custody of the minor
child shall be placed with her father pending further Order
of the Court upon the receipt of an approved Home Study from