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Marshall County Department of Human Resources v. J.V.

Alabama Court of Civil Appeals

March 9, 2018

Marshall County Department of Human Resources
v.
J. V.

         Appeal from Marshall Juvenile Court (JU-09-300067.05)

          PER CURIAM

         This is the ninth time that the Marshall County Department of Human Resources ("DHR") and J.V. ("the father") have appeared before this court seeking relief from one or another judgment or order of the Marshall Juvenile Court ("juvenile court") respecting the custody of J.V.V. ("the child"). For the history of the litigation between these parties, see Marshall County Department of Human Resources v. J.V., 152 So.3d 370 (Ala. Civ. App. 2014); Marshall County Department of Human Resources v. J.V., 203 So.3d 1243 (Ala. Civ. App. 2016) ("J.V. I"); Ex parte Marshall County Department of Human Resources, [Ms. 2150709, July 1, 2016] So.3d (Ala. Civ. App. 2016) ("J.V. II");[1] Ex parte Marshall County Department of Human Resources (No. 2150795, July 1, 2016), 231 So.3d 325 (Ala. Civ. App. 2016) (mandamus petition denied by order) (table); Ex parte Marshall County Department of Human Resources (No. 2160757, July 10, 2017), So.3d _ (Ala. Civ. App. 2017) (mandamus petition granted by order) (table); Marshall County Department of Human Resources v. J.V. (No. 2160761, July 14, 2017), So.3d _ (Ala. Civ. App. 2017) (appeal dismissed by order) (table); Ex parte Marshall County Department of Human Resources, [Ms. 2160947, October 6, 2017] So.3d _ (Ala. Civ. App. 2017) ("J.V. IV"); and Ex parte Marshall County Department of Human Resources, [Ms. 2160948, October 6, 2017] So.3d _ (Ala. Civ. App. 2017).

         The basic underlying facts and procedural history were set out in J.V. IV:

"This matter began in 2009, when DHR removed J.V.V. ('the child') from the custody of M.M.T. ('the mother') and placed the child in foster care. J.V. I, 203 So.3d at 1244. J.V. ('the father') resided in Florida when the child was removed from the mother's custody. Id. The father was awarded supervised visitation with the child in 2010 and unsupervised visitation with the child in December 2010 and January 2011. Id. The foster parents with whom the child was living accused the father of sexually abusing the child. Id. The father was criminally charged; however, the charges were later dropped. Id. at 1245. While the criminal charges were pending, the father spent 17 months in jail between October 2011 and February 2013. After the criminal charges were dropped, the father was transferred to a detention facility in Louisiana on an immigration hold, where he remained until September 2014, when he was released; he then moved to Georgia. Id. Although DHR had sought the termination of the father's parental rights during that period, the juvenile court had denied DHR's petition. Id.
"In November 2014, the father filed a petition in the juvenile court seeking custody of the child. Id. The juvenile court, after a trial, entered an order in December 2014 requiring DHR to prepare a plan to transition custody of the child to the father and to have a home study performed on the father's home in Georgia. Id. However, that order was not a final custody judgment because it did not transfer custody of the child to the father but, rather, set the matter '"for further review on disposition."' Id. at 1246. Further review hearings were held on March 23, 2015, and May 12, 2015, to develop the transition plan. A May 2015 order indicated that physical custody of the child would be placed with the father on July 27, 2015, if Georgia approved the father's home for placement after a home study. Id.
"On June 23, 2015, DHR moved for an evidentiary hearing. Id. at 1247. In its motion, DHR explained that Georgia had not approved the father's home for placement and that the child was not prepared to transition to the father's home. Id. After the requested hearing, the juvenile court entered a judgment on July 2, 2015, which ordered that legal and physical custody of the child be transferred to the father and that the transfer of physical custody occur no later than July 27, 2015, as required by the May 2015 order. Id. DHR appealed from that judgment. Id. We affirmed the judgment insofar as it awarded custody of the child to the father. Id. at 1253. However, we reversed the judgment insofar as it ordered the transition of custody to take place in July 2015, explaining that, based on the evidence before the juvenile court, 'the father and the child do not have a relationship strong enough to accomplish the transition of custody' and concluding that 'the child's best interest would [not] be served by immediately awarding custody to the father.' Id. at 1254.
"Upon remand, the juvenile court entered an order on April 3, 2016, in which it outlined a transition plan to which the parties had agreed. J.V. II, So.3d at ___. The plan provided that the father would have unsupervised visitation with the child on the weekend of May 27, 2016, to May 30, 2016. Id. at ___. On May 26, 2016, DHR filed a motion seeking to prevent that visitation from occurring based on allegations that the child had attempted to harm herself and that visitation with the father would not be safe for the child; the juvenile court denied that motion. Id. at ___. DHR also filed a motion seeking to stay the visitation, which the juvenile court also denied. Id. at ___.
"DHR then filed an emergency petition for the writ of mandamus in this court, in which it sought an order 'compelling the juvenile court to "terminate visitation between the child and the father."' Id. at ___. We construed the request to terminate visitation as being a request to modify the award of custody to the father. Id. at ___. Based on that characterization, we determined that DHR was not entitled to the relief it sought in the petition. Id. at ___. In our opinion, we explained that the award of custody to the father had become the law of the case and that DHR's allegations were, in fact, new allegations supported by new evidence that had come into existence after the entry of the April 3, 2016, order and could be presented to the juvenile court only by way of a petition for modification. Id. at ___.
"After the issuance of our opinion in J.V. II, DHR filed a petition for the writ of mandamus in our supreme court. See Ex parte Marshall Cty. Dep't of Human Res., 233 So.3d 345 (Ala. 2017) ('J.V. III'). That court issued an opinion on March 31, 2017, in which it determined that the April 3, 2016, custody order was not a final custody judgment incapable of alteration because, the court reasoned, in dependency cases there are typically a series of appealable dispositional custody orders and, the court noted, the April 3, 2016, order indicated that further review of the transition would occur on October 3, 2016. J.V. III, 233 So.3d at 355. Our supreme court also explained that, because the April 3, 2016, order was not a final custody judgment, 'the juvenile court was free to take into account evidence regarding matters occurring after the entry of its April 2016 order and before any order that it might issue on October 3, 2016, in determining whether a modification of the terms of transition was warranted.' Id. The supreme court observed that the juvenile court had not held a hearing on the allegations regarding the child's mental health and safety that DHR had made in its May 2016 filings in the juvenile court. Id. at 357. Specifically, our supreme court stated that 'the juvenile court should have scheduled a hearing so that it could properly evaluate any evidence DHR might present ... as to the alleged change in the child's circumstances after the entry of the April 2016 order.' Id.
"After the issuance of our supreme court's certificate of judgment in J.V. III, upon request of the father, the juvenile court set the hearing referenced in the supreme court's opinion for July 13, 2017. DHR objected to the July 13, 2017, hearing and also filed a motion for a summary judgment in which it argued that the supreme court's decision in J.V. III had resolved the issue regarding custody finally and conclusively in favor of DHR. The juvenile court, after a hearing, denied DHR's motion for a summary judgment on June 21, 2017, and DHR filed both a notice of appeal to our supreme court and a petition for the writ of mandamus in our supreme court. Both the appeal and the petition were transferred to this court because, as they both arose from a dependency and custody matter, they fell within our subject-matter jurisdiction, see Ala. Code 1975, § 12-3-10; the appeal was assigned case no. 2160761 and the petition was assigned case no. 2160757.
"We dismissed DHR's appeal of the denial of its motion for a summary judgment by order (case no. 2160761), citing Continental Casualty Co. v. SouthTrust Bank, N.A., 933 So.2d 337, 340 (Ala. 2006), because the order denying DHR's motion for a summary judgment was not capable of supporting an appeal. We further noted in our order that DHR's alternative request that this court allow DHR to pursue a Rule 5, Ala. R. App. P., permissive appeal was precluded by Rule 5. See Committee Comments, Rule 5 (stating that the rule does not 'apply to cases appealable to the Court of Civil Appeals'). We granted DHR's petition for the writ of mandamus (case no. 2160757), which sought the cancellation of the July 13, 2017, hearing, by order because the filing of the notice of appeal in case no. 2160761 had removed jurisdiction over the action from the juvenile court, and it therefore lacked the authority to conduct the July 13, 2017, hearing or to otherwise act on the matter until this court concluded its review and entered a certificate of judgment. See M.G. v. J.T., 105 So.3d 1232, 1233 (Ala. Civ. App. 2012) (explaining that until this court issues its certificate of judgment on a matter, a lower court does not have jurisdiction to act on that matter).
"After the resolution of DHR's most recent petition and appeal, the father again filed in the juvenile court a motion to set the matter for an evidentiary hearing. DHR again objected to the father's request. Although the juvenile court at first declined to set a hearing because it was unaware that the appeal (case no. 2160761) had been dismissed, it later placed the father's request on an August 16, 2017, motion docket. On August 17, 2017, the juvenile court entered an order setting an evidentiary hearing for October 16, 2017."

J.V. IV, ___ So.3d at ___- ___.

         After the conclusion of the October 16, 2017, hearing, the juvenile court entered a judgment on October 19, 2017, in which it set out a new transition schedule with graduated visitation and ordered that the child be placed in the physical and legal custody of the father on January 1, 2018. Among other things not pertinent to the issues on appeal, the judgment ordered that the father and the child continue counseling with Dr. Elaine Eassa, the psychologist the parties had agreed that the father and the child would continue to see, which agreement the juvenile court had incorporated into the April 2016 order; that the child not be taken to another psychologist or counselor without leave of court; and that the father and the child continue language classes to assist in communicating with each other. The October 19, 2017, judgment further ordered that DHR "be responsible for all transportation, expenses, fees, or other costs associated with carrying out the terms of this [judgment] and the transition of custody to the father." In order to ensure the finality of the judgment, the juvenile court set no further review hearings and ordered that the case be closed.

         DHR timely appealed from the judgment. DHR also requested a stay regarding implementation of the transition schedule, which this court granted. On appeal, DHR asserts four arguments: (1) whether the juvenile court erred by awarding the father legal and physical custody of the child despite "overwhelming evidence" that such an award is not in the best interest of the child; (2) whether the juvenile court erred by awarding the father visitation with the child when "overwhelming evidence" indicates that visitation is not in the best interest of the child; (3) whether the juvenile court exceeded its discretion by ordering that the father and the child see a particular psychologist or counselor, which, DHR asserts, is contrary to the child's best interest and usurps DHR's authority; and (4) whether the juvenile court exceeded its discretion by ordering DHR to be responsible for the costs relating to the transition of custody to the father.

         The record in the present appeal contains the testimony of the DHR caseworker, Kristy Smith, the father, and Dr. Lois Petrella, a psychologist who evaluated the child in May 2016 and in April 2017. Neither the father nor DHR offered into evidence Dr. Petrella's written reports or the records of Dr. Eassa, who counseled the father and the child beginning in March or April 2015 until at least June 2015 and, again, at the least, three times in May 2016.[2] Neither the child's foster parents nor the child were present at the October 2017 hearing, so the juvenile court did not hear testimony from the child regarding the allegations that gave rise to DHR's May 2016 motions in the juvenile court.

         Smith testified regarding the concerns that led to DHR's filing of the May 2016 motion to cease visitation. She explained that the child's "behavior had deteriorated to the point that she was engaging in self-harm." Smith recounted that the child had cut her finger and that the child had said that she would rather live in a hospital than to return to the father's home. In addition, Smith said, the child was refusing to use the bathroom or to perform basic hygiene while at the father's home and refusing to ride in an automobile with the father.

         Smith testified that the father and the child had not visited with each other since the entry of this court's stay of the April 2016 order in May 2016. In addition, Smith stated that DHR had also ceased transporting the child to counseling sessions with Dr. Eassa after May 2016. Smith explained that DHR desired that all visitation between the child and the father be terminated and that custody of the child be awarded to DHR so that it could pursue its permanency plan of adoption by the foster parents. Although Smith admitted that the father had done everything that was asked of him, she still opined that the child's best interest would be served by allowing her to "stay" with DHR and the foster parents.

         Smith admitted that DHR had changed its permanency plan for the child on May 1, 2017, to adoption by the child's current foster parents. She further admitted that, in the spring of 2016, DHR had informed Scott McGee, the licensed professional counselor who the child had begun seeing to address post-traumatic stress disorder ("PTSD") and anxiety issues, that DHR intended to terminate the father's parental rights, despite the fact that, at that time, the permanency plan, in accordance with the juvenile court's orders, was to return custody of the child to the father. Smith testified that DHR had ...


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