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Ex parte Marshall County Department of Human Resources

Supreme Court of Alabama

March 8, 2019

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; Court of Civil Appeals, 2170082

          PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS

          PER CURIAM

         We granted the petition for a writ of certiorari filed by the Marshall County Department of Human Resources ("DHR") to review the Court of Civil Appeals' decision in Marshall County Department of Human Resources v. J.V., [Ms. 2170082, March 9, 2018]__ So.3d __(Ala. Civ. App. 2018), affirming the juvenile court's order immediately removing J.J.V. ("the child") from her foster parents and ultimately transferring legal and physical custody of the child to her biological father, J.V. ("the father"). For the reasons set forth below, we reverse the judgment of the Court of Civil Appeals.

         Facts and Procedural History

         In Marshall County Department of Human Resources v. J.V., 203 So.3d 1243 (Ala. Civ. App. 2016) ("J.V. I"), [1] the Court of Civil Appeals explained some of the factual and procedural history of this case 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 judgment.
"Meanwhile, the sexual-abuse charge against the father was dismissed on February 11, 2013. The father was then transferred to a detention facility in Louisiana on an immigration hold based on his status as an illegal immigrant. The father was released from the Louisiana facility in September 2014, after a 17-month detention. The father then moved to Canton, Georgia.
"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.'
"... [A] transition plan was created by the parties; the juvenile court entered an order incorporating the agreed-upon transition plan on March 27, 2015. In addition to setting out the transition plan, the order contained, among other things, the following provisions:
"'1. This matter is set for further review on disposition on May 12, 2015 at 9:00 a.m.
"'[2]. At this time, the father's visitation plan to transition physical custody of his child from the Marshall County Department of Human Resources shall be as [set out in the following omitted subparagraphs]:
"'[3]. 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]:
"'[4]. On June 12, 2015, physical custody of the minor child shall be placed with her father pending further Order of the court.
"'[5]. The Marshall County Department of Human Resources has agreed to provide transportation to and from the visitation; however, the father has agreed to provide the names of in home relatives for approval by the Marshall County Department of Human Resources to assist in transportation during this transition.
"'[6]. The child and father shall continue to participate and cooperate with counseling with Dr. Eassa, a licensed psychologist.
"'[7]. A hearing will be scheduled upon the motion of any party and notice being given.'

         "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 Georgia through the ... ICPC.'"

203 So.3d at 1244-47 (emphasis added).

         On June 23, 2015, DHR requested an evidentiary hearing, arguing that the home study in Georgia had not been approved and asserting that the child was not prepared to transition to the father's home on July 27, 2015. After conducting a hearing on the motion, on July 2, 2015, the juvenile court entered an order that provided, in part:

"1. The physical transition of the child to the child's father shall occur absolutely no later than the previously agreed upon date of July 27, 2015. The occurrence of this final transition is no longer conditioned upon anything.
"4. In an effort to be perfectly clear, all physical custody, all legal custody and all authority over the child shall be returned to the father no later than July 27, 2015."

         DHR appealed the juvenile court's order to the Court of Civil Appeals.

         In J.V. I, the Court of Civil Appeals reversed the juvenile court's judgment "insofar as it ordered an immediate transfer of the child's custody to the father." 203 So.2d at 1254. The Court of Civil Appeals relied in large part on the testimony of Dr. Elaine Eassa, the licensed psychologist who had been counseling the child and the father to assist with reunification. That court summarized Dr. Eassa's July 2, 2015, testimony as follows:

"She had been counseling the child and the father since March or April 2015 to assist them with reunification. Dr. Eassa said that the child had indicated, even at her first sessions, that she did not feel safe with the father, that she did not want to be alone with the father, and that she did not want to live with the father. Dr. Eassa opined that the child was not ready to transition into the father's home. Dr. Eassa explained that, if the child were placed with the father before she was ready for the transition, the child would become oppositional and defiant, act out, be depressed, and exhibit troublesome behaviors and that the father would need to be prepared to address those behaviors. However, Dr. Eassa lacked confidence the father could handle the child's expected behavior.
"Dr. Eassa had observed the father and the child together only once, on June 27, 2015, the Saturday before the July 2, 2015, hearing. She said that the child would not communicate with the father. According to Dr. Eassa, the child had told the father at the visit before the June 27, 2015, visit that she did not want to live with him.
"Dr. Eassa explained that she understood that the child would often yell at the father and throw things, including rocks, at him during visitations. Dr. Eassa said that the child had said that she 'had a bag packed,' indicating perhaps that she planned to run away. Furthermore, Dr. Eassa testified that the child had made statements indicating that she might harm herself if she was forced to stay with the father.
"When asked if the child was 'driving the show,' Dr. Eassa explained that, in her opinion, the child should be in control of the reunification plan. She said that an immediate transition to the father's custody would retraumatize the child. When asked to clarify whether the initial trauma to the child was actual sexual abuse or being convinced by the foster parents that such abuse had occurred, Dr. Eassa stated that it did not matter because, to the child, the abuse had occurred.
"Dr. Eassa testified that the father had been making progress toward reunification. She explained that some of the issues with the father's ability to parent the child were culturally based; she explained that parents from the Guatemalan culture were more lenient about a child's misbehavior. As an example, Dr. Eassa related that the father gave into the child's demand for an ice cream even after she had thrown rocks at him. Dr. Eassa said that she had encouraged the father to be more assertive with the child and to set limits with her; she said that if the father did not learn to set those limits, the child, who Dr. Eassa indicated had a tendency to be 'bossy,' would 'run all over him.' According to Dr. Eassa, the father was cooperative in counseling sessions and tried to incorporate her advice; she said that he had done very well in counseling and had become more assertive with the child with Dr. Eassa's encouragement. However, Dr. Eassa opined that the father was not yet ready to parent the child on his own. She also testified that she had discussed the progress of reunification with the father, stating:
"'We talked about [whether he] is he ready for her to be reunified because I have concerns about his ability to handle her because I think that she is really going to have difficulty making that transition. And we talked about [the fact] that [reunification] may not [occur] as quick[ly] as [he] thought it [would] and he is aware of that and he is agreeable to whatever needs to be done. He is willing to do whatever we need to do for [the child].'"

J.V. I, 203 So.3d at 1251-52 (emphasis added).

         The Court of Civil Appeals also noted that the home study that was performed in Georgia pursuant to the Interstate Compact on the Placement of Children, codified at § 44-2-20 et seq., Ala. Code 1975 ("ICPC"), was admitted into evidence. With regard to that home study, the court noted:

"The home study indicated that the father's home was safe for the child. The ICPC home study questioned the father's financial ability to support himself and the child and raised questions regarding the father's criminal history, which consisted of the dismissed indictment for sexual abuse of the child. Furthermore, the ICPC home study indicated that Dr. Eassa had opined that reunification was not appropriate at the time because of the child's persistent fear of the father.
"Stacy Duncan, the child's DHR caseworker after February 2013, testified that, without an approved ICPC home study from Georgia, DHR was unable to place the child with the father in Georgia. Specifically, she explained that Alabama could not monitor a child placed in another state and that, without an approved ICPC home study, another state (like Georgia) would also fail to monitor the child. Duncan confirmed that the Georgia ICPC home study indicated concerns about the father's financial ability ...

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