J.B. v. Dhr

• Decision Date: 19 December 2008
• Docket Number: 2070570.
• Parties: J.B. v. DeKALB COUNTY DEPARTMENT OP HUMAN RESOURCES and J.N. and M.N.
• Court: Alabama Court of Civil Appeals

12 So.3d 100

J.B. v. DeKALB COUNTY DEPARTMENT OP HUMAN RESOURCES and J.N. and M.N.

2070570.

Court of Civil Appeals of Alabama.

December 19, 2008.

Tommy Allen French of Robert B. French, Jr., P.C., Fort Payne, for appellant.

Sharon E. Ficquette and Karen P. Chambless, staff attys., for appellee Department of Human Resources. `

L. Jayson Carroll, Rainsville, for appellees J.N. and M.N.

MOORE, Judge.

This court's opinion of November 7, 2008, is withdrawn, and the following is substituted therefor.

J.B. ("the father") appeals from a judgment of the DeKalb Juvenile Court ("the juvenile court") terminating his parental rights to his two natural children to allow for their adoption by J.N. and M.N. We reverse and remand.

Facts¹

In July 2001, the DeKalb County Department of Human Resources ("DHR") opened a protective-services case regarding A.B. and Ju.B.,² the children born of the marriage between the father and T.B. ("the mother"). DHR received reports that the father was in jail serving 40 days for a conviction of driving under the influence and that the mother was not properly caring for the medical and hygiene needs of the children. DHR attempted to teach the mother parenting and housekeeping skills; however, the mother did not seem to be able to learn. DHR then petitioned the juvenile court to obtain custody of the children, which petition was granted in October 2001. Subsequently, a psychological evaluation showed that the mother had an IQ of 58 and that she could not properly parent the children because of her mental deficiencies. However, DHR and the juvenile court determined that the father was capable of caring for the children. DHR eventually worked out a plan pursuant to which the children could be placed in day care until the end of the father's workday, after which he would take over their primary care. In December 2002, the juvenile court returned physical custody of the children to the parents based on that plan. On September 29, 2003, the parents obtained full physical and legal custody of the children. Although the September 29, 2003, judgment did not place any limitations on the mother's custodial authority, DHR and the father understood that the mother would not be left alone to care for the children.

DHR had no further involvement with the family between September 2003 and 2006. During that time, the father worked at a series of three jobs while the children stayed in day care and he acted as the primary caregiver for the children when he was not working. The mother assisted the father with child care, but mainly she kept house; the mother did not work because of her mental disability, and she received a monthly Supplement Security Income ("SSI") check from the Social Security Administration.

On July 31, 2006, the father, who was an illegal immigrant,³ returned to his native country of Guatemala to obtain a visa so he could legally reside in the United States.⁴ The record contains no evidence indicating that the father could have obtained the visa without traveling to Guatemala.⁵ He did not take the mother and the children with him because he could not afford it. The father expected he would be in Guatemala for 20 to 60 days. Because he realized he could not leave the children alone with the mother, the father arranged for the children to stay with a friend in Fort Payne while the mother remained in the family's mobile home. The father also requested that the mother's sisters and father check on the family while he was gone.

Within two weeks after the father arrived in Guatemala, the mother arranged with a friend to stay at the family's mobile home to assist her with the children. The mother telephoned the father and requested his permission to obtain the children from the father's friend's home. The father agreed, on the condition that the mother's friend live with her and the children. The mother thereafter obtained the children from the father's friend's home. However, the mother's friend soon left the mobile home, leaving the mother largely unattended to care for the children, except when her sisters or father ("the children's maternal grandfather") would stop by to help her. The father testified that he had learned of the situation when he contacted the family on the telephone as he did every Wednesday night.⁶ Upon learning of the situation, the father tried to speed up the visa process, but he was informed that instead of the expected 20 to 60 days, the process would take 6 to 9 months, during which time he could not legally return to the United States. The record contains no evidence indicating that any voluntary or intentional act or omission of the father prolonged the visa process.

While awaiting his visa, the father obtained a job in Guatemala working in a restaurant, earning $7 or $8 a day. He lived with friends in a home that had no running water. The mother sent him money from her SSI check to help him financially. The father testified that he believed that the mother could take care of the children's financial needs with food stamps and the remainder of her SSI check, although he admitted that the family had depended on his income while he was in Alabama to meet the children's needs.

On September 13, 2006, DHR received a report that the mother had been found walking the street, crying and calling for help with the children.⁷ DHR intervened at that point, and the mother worked out an arrangement with three persons, in addition to her sisters and her father, to assist her temporarily in caring for the children; however, each temporary plan failed. DHR informed the mother within a month of September 13, 2006, that the children would be placed in foster care if the father did not return expediently. According to a court report, DHR contacted the father over the telephone on several occasions to inform him of the situation. The father testified that he had requested that DHR forgo the removal of the children until he could obtain his visa. However, DHR ultimately decided that, because of the mother's mental incapacity and the father's absence, the children had no one to properly care for them. On October 17, 2006, DHR filed a dependency petition and picked up the children.

Two days later the juvenile court held a shelter-care hearing and, by an order dated November 16, 2006, the juvenile court awarded DHR pendente lite custody of the children, who were subsequently placed into a foster home. The mother telephoned the father to let him know that DHR had taken the children.

After DHR placed the children in foster care, DHR arranged for medical screenings; those screenings showed the children to be healthy. DHR arranged for weekly visitation between the children and the mother and weekly telephone visitation between the children and both the mother and the father. DHR looked for relatives to take the children. One of the mother's sisters indicated that she would be willing to accept custody of the children, but DHR would not approve that arrangement because of the sister's and her husband's criminal history. The sister testified that DHR additionally informed her that she had too many persons—herself, her husband, four teenage children, and her father—already living in her home.

On November 27, 2006, DHR submitted a court report indicating that it believed that it should be relieved of having to use reasonable efforts to reunite the family because the mother and the father had subjected the children to aggravating circumstances. DHR contended that the father had left the children with the mother while he traveled to Guatemala, even though he knew from his previous involvement with DHR that the mother's mental condition precluded her from properly caring for the children, and it expressed concern to the court that he would continue to do so. On December 5, 2006, the juvenile court granted DHR's request by entering an order finding that DHR had no duty to use reasonable efforts to reunite the family. DHR did not provide services to the family at any point after gaining custody of the children, but it concentrated on placing the children with an appropriate relative, the permanency plan adopted by the juvenile court on December 21, 2006.

On January 18, 2007, DHR filed a petition to terminate the parental rights of the mother and the father. Emma Ford, the DHR caseworker assigned to the family in 2006, testified that ordinarily DHR does not file termination petitions only three months after children have been placed in foster care, but her supervisor had told her to file the petition so soon because it was DHR's position that the father had abandoned the children by staying in Guatemala. Ford testified that she had had several conversations with the father in which she had told him that he had to return to Alabama to avoid the termination of his parental rights and that each time the father had responded that he could not return until he obtained his visa. In early January 2007, the father delivered a notarized letter to Ford indicating that he was still trying to obtain his visa and that he had not abandoned his family.⁸ The father requested that DHR maintain custody of the children until he could obtain his visa in approximately five months.⁹ Ford testified that she understood the only reason the father had not returned to Alabama as requested was because he was prohibited from doing so by Guatemalan and American law. Ford testified that she did not know whether, under those circumstances, the father had, in fact, abandoned the children.

Before the termination petition was filed, the children's maternal grandfather had referred the mother to the family who had adopted her first child to see if they would accept custody of the children.¹⁰ They would not agree to take the children, but they referred the mother to J.N. and M.N., who they knew from church and who had expressed an interest in adopting children. DHR did not agree to place the children with J.N. and M.N....