Juvenile Court, JU-09-300067.05; Court of Civil Appeals,
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
Marshall , atty. gen., and Sharon E. Ficquette , chief legal
counsel, and Karen P. Phillips , asst. atty. gen., Department
of Human Resources, for petitioner.
Shane Hollaway of Hollaway Law Office, Guntersville, for
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., 288 So.3d 469 (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.
and Procedural History
Marshall County Department of Human Resources v.
J.V., 203 So.3d 1243 (Ala. Civ. App. 2016)
("J.V. I"), 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
"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
"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
"`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
"`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
". . . [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.
"`. 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]:
"`. . . .
"`. 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
"`. . . .
"`. On June 12, 2015, physical custody of the minor
child shall be placed with her father pending further Order
of the court.
"`. 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.
"`. The child and father shall continue to
participate and cooperate with counseling with Dr. Eassa, a
"`. 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).
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,
DHR appealed the juvenile court's order to the Court of
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.3d 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
"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
"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
jndicated 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,
"`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).
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 ...