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 ...