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Ex parte Marshall County Department of Human Resources

Supreme Court of Alabama

March 31, 2017

Ex parte Marshall County Department of Human Resources
v.
J. V. In re: Marshall County Department of Human Resources

         Marshall Juvenile Court, JU-09-300067.05

          PETITION FOR WRIT OF MANDAMUS

          MURDOCK, Justice.

         J.J.V. ("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 father.[1]

         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.[2] 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 judgment."

Marshall Cty. Dep't Human Res. v. J.V., 203 So.3d 1243, 1244-45 (Ala. Civ. App. 2016)("J.V. I").

         In 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 detention facility.

         The 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 follows:

"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 following:
"'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.

         The 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 omitted subparagraphs]:
"'....
"'... 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 licensed psychologist.'"

J.V. I, 203 So.3d at 1246. The Court of Civil Appeals continued:

"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 ...

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