from Marshall Juvenile Court (JU-09-300067.05)
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"); 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).
basic underlying facts and procedural history were set out in
"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
"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
"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 ___- ___.
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.
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.
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. 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.
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.
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
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 ...