Ex parte Limestone Cnty. Dep't of Human Res.

• Decision Date: 01 December 2017
• Docket Number: 2160996,2160995
• Citation: 255 So.3d 210
• Parties: EX PARTE LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES (In re: The Matter of A.S.H. and In re: The Matter of T.K.H.)
• Court: Alabama Court of Civil Appeals

255 So.3d 210

EX PARTE LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES

(In re: The Matter of A.S.H.

and

In re: The Matter of T.K.H.)

2160995

2160996

Court of Civil Appeals of Alabama.

December 1, 2017

Steve Marshall, atty. gen., and Sharon E. Ficquette, legal counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for petitioner.

Edward L. Alley, Athens, guardian ad litem, as respondent.

DONALDSON, Judge.

The Limestone County Department of Human Resources ("DHR") petitions this court for writs of mandamus directing the Limestone Juvenile Court ("the juvenile court") to vacate orders entered in both of the underlying cases on August 25, 2017, and September 5, 2017. For the reasons discussed below, in each of these consolidated mandamus proceedings, we grant the petition in part and deny the petition in part.

Facts and Procedural History

A.H. ("the mother") and J.H. ("the father") are the parents of T.K.H., born September 17, 2010, and A.S.H., born October 7, 2012 (T.K.H. and A.S.H. are hereinafter referred to collectively as "the children"). In March 2016, the children were found to be dependent by the juvenile court and were placed in the custody of DHR. On February 2, 2017, after a hearing, the juvenile court entered orders that, among other things, identified adoption as the permanency plan for both children.

See § 12–15–315(a), Ala. Code 1975 (requiring, among other things, annual permanency hearings for the purpose of determining a permanency plan for a child removed from his or her home).

On February 16, 2017, DHR filed petitions to terminate the parental rights of the mother and the father to A.S.H. and T.K.H. On April 26, 2017, after a trial, the juvenile court entered orders that terminated the parental rights of the mother and the father to both children and placed the children in DHR's permanent legal custody.

On August 21, 2017, the juvenile court held a hearing ("the permanency review hearing") pursuant to § 12–15–321, Ala. Code 1975, which provides: "Where the juvenile court has terminated the parental rights and has placed legal custody of the child with the Department of Human Resources ..., the juvenile court, at least annually, shall review the circumstances of the child to determine what efforts have been made to achieve permanency for the child." On August 25, 2017, the juvenile court entered substantively similar orders in the children's cases, providing, in part:¹

"THIS CAUSE came before the Court on August 21, 2017, for a permanency review hearing. Present in Court were the Hon. Michael Sizemore representing the Limestone County Department of Human Resources; the Guardian ad litem for the minor child[ren], the Hon. Eddie Alley who, after having met with the child[ren], waived the child[ren]'s presence at the hearing; and the foster parents for [one] of the child[ren], [T.H. and D.H.].

"On April 26, 2017, this Court entered an Order terminating the parental rights of the [children's] parents and placing the [children's] permanent legal and physical custody with [DHR]. The matter is presently before the Court to review the efforts of [DHR] to achieve adoption of the child[ren] and to ensure that [DHR] is using reasonable efforts to achieve the permanency plan for the child[ren], which as stated by [DHR], is adoption.

"....

"The Court having carefully considered the sworn testimony makes the following findings:

"History

"This action began as a dependency petition filed by [DHR]. The [children] were removed from the custody of the parents and placed in foster care at the beginning of the case. [The children were] initially placed in a foster home [together].

"Throughout the pendency of this case, the custody of the child[ren] has remained with [DHR]. At some point the [children] were placed in separated foster homes. In hindsight it appears that this separation was not necessary; however at the time it was reasonable for [DHR] to separate the children given the information [DHR] then had.

"It is clear to this Court that as this case progressed [A.S.H.'s] foster parents, the [R.'s], went to great lengths to obstruct any meaningful contact between [A.S.H.] and [T.K.H.]. It is worth noting that the [R.'s] have never appeared before this Court at any hearing concerning the minor child. [DHR] worked to facilitate visitation between the [children] and explore the possibility of placing the [children] together. [DHR] clearly understands the great benefit to [each] child that comes from a meaningful relationship with her sibling. It is clear from the testimony that the [R.'s] and the State Department [of Human Resources (‘the State DHR’) located in Montgomery] worked at every turn to disrupt a meaningful relationship between the [children]. This Court is not aware of exactly what interest the State DHR has in this case, but the Court intends to find out the reasons for [the State DHR's] interference in this Limestone County Case.

"In March of 2017 it was determined, by DHR, that [A.S.H.] needed to be placed in a therapeutic foster home. However, Nancy Buckner and others from ‘State’ DHR intervened and prevented the child being so placed. In fact, as of this hearing [A.S.H.] has yet to be placed in a therapeutic foster home.

"On April 26, 2017, this Court terminated the parental rights of the parents, granted permanent custody of the [children] to DHR, and set this matter for a permanency review hearing.

"On July 27, 2017, in response to a motion filed by the Guardian ad Litem, this Court Ordered visitation to occur between [A.S.H.] and [T.K.H.] ‘within seven day[s] of this Order.’ However, due to the interference of Nancy Buckner and others from [the State DHR], this visitation did not actually occur until August 8, 2017. Due to the actions of the State [DHR], [DHR] was in contempt of this Court's Order on visitation for five days. Fortunately for DHR, no Petition for Contempt has yet been filed before this Court related to this matter.

"Discussion

"As of this hearing [A.S.H.] was still not placed in a therapeutic foster home, was not placed in a home with [T.K.H.], and continued to be placed with foster parents who refuse to participate in [A.S.H.'s] therapy. All of these facts are in direct contradiction of DHR ‘policy.’ Apparently unhappy with the resolve of [DHR] to pursue the best interest of [the children], Nancy Buckner and others from [the State DHR] had directed [DHR] as to how this case will be handled. When [DHR] did not fall into line quickly enough, [the State DHR] decided to assign the case to the Madison County [Department of Human Resources (‘the Madison County DHR’) ]. This Court trusts that the Madison County [DHR] has the good sense to continue to work for the best interests of [the children], rather than the selfish interests of a few adults even though one of these adults is the Commissioner of [the State] DHR.

"It is clear to this Court that the intervention of Nancy Buckner and others from [the] State DHR has done nothing to further the permanency plan of the minor child[ren]. In fact, the actions of the Commissioner and others have worked in direct opposition to the best interests of the minor child[ren]. [DHR] has worked tirelessly to benefit [the children]; however, they have found themselves, at every turn, undone by orders from [the State DHR], carved into stone by Commissioner Buckner.

"Based upon the evidence presented this Court FINDS and ORDERS that the State [DHR] has failed to use reasonable efforts to achieve the permanency plan developed for the minor child[ren].

"The Court FURTHER FINDS that it is in the best interest of [A.S.H.] that she be placed in a therapeutic foster home.

"The Court FURTHER FINDS that it is in the best interest of [T.K.H.] that she be placed in a pre-adoptive foster home with [A.S.H.] immediately.

"It is HEREBY ORDERED that this matter is set for a permanency review hearing on November 2, 2017, at 9:00 A.M.

"It is FURTHER ORDERED that Nancy Buckner shall personally appear at the next permanency hearing to fully explain to the Court her special interest in this case. It is time for the wizard to come out from behind the curtain.

"It is FURTHER ORDERED that, prior to the next hearing, Nancy Buckner shall coordinate with the Guardian ad Litem to personally meet with [each] minor child and discuss with her, in an age appropriate manner, her wishes regarding contact with her sister. If the Commissioner intends to make decisions for the child[ren], then she should personally meet with the child[ren] and be well informed prior to said decisions."

(Capitalization, emphasis, and bold typeface in original.) On September 1, 2017, DHR filed motions seeking transcription of both the August 21, 2017, permanency review hearing and the termination-parental-rights trial held on April 26, 2017. On September 4, 2017, DHR filed motions seeking to alter, amend, or vacate the juvenile court's August 25, 2017, orders.² On September 5, 2017, the juvenile court entered separate orders in which it denied DHR's motions for transcription and to alter, amend, or vacate the August 25, 2017, orders. On September 7, 2017, DHR filed amended motions, to which it attached exhibits, seeking to alter amend, or vacate the August 25, 2017, orders; those motions were denied the same day. On September 7, 2017, DHR filed motions seeking to stay enforcement of the juvenile court's August 25, 2017, orders, which were also denied the same day.

On September 8, 2017, DHR timely filed a single petition for the writ of mandamus in this court, referencing both of the underlying cases. This court docketed two separate mandamus proceedings and then ordered that the proceedings be consolidated. See Rule 21(a)(3), Ala. R. App. P., and Ex parte R.W., 41 So.3d 800, 804 (Ala. Civ. App. 2009) (explaining that the presumptively reasonable time for filing a petition for the writ of mandamus is the same as the time for taking an appeal and that, in a juvenile action, the presumptively reasonable time...