J.S. v. J.C., 2210022

CourtAlabama Court of Civil Appeals
Writing for the CourtPER CURIAM
PartiesJ.S. and A.S. v. J.C. and C.C.
Docket Number2210022
Decision Date02 September 2022

J.S. and A.S.
v.
J.C. and C.C.

No. 2210022

Alabama Court of Civil Appeals

September 2, 2022


Appeal from Elmore Juvenile Court (JU-19-271.04)

PER CURIAM

J.S. and A.S. ("the foster parents") appeal from a judgment of the Elmore Juvenile Court denying their petition to adopt R.T.J. ("the child"). We affirm the judgment.

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Background

The child was born on September 8, 2019, to M.R. ("the mother") and A.J. ("the father"). The mother and the father were not married, and, at the time of the child's birth, the mother lived with her mother, J.C. ("the grandmother"), and her stepfather, C.C. ("the grandfather") (collectively referred to as "the grandparents"). On October 15, 2019, the Elmore County Department of Human Resources ("the Elmore County DHR") filed a petition in the Elmore Juvenile Court seeking emergency custody of the child based on allegations of child abuse. A hospital had reported that the child had a fractured leg and a fractured skull. The skull injury was healing and was older than the leg injury. The next day, after a shelter-care hearing, the Elmore Juvenile Court entered an order finding that the child was dependent and awarding the Elmore County DHR custody. The Elmore County DHR placed the child with the foster parents.

On October 29, 2019, the grandparents filed a petition in the Elmore Juvenile Court seeking custody of the child on the ground that the child was dependent. A document filed that same day reflects that the mother consented to the grandparents' petition and states that the

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mother believed that it was in the child's best interest to be placed with the grandparents.

Because the grandfather was an Elmore County sheriff's deputy, the Alabama Law Enforcement Agency ("ALEA") conducted the investigation into the child's injuries.[1] In a letter dated December 4, 2019, ALEA found that the grandparents had no involvement in or knowledge of the child's alleged abuse and that they were not under investigation.[2] Initially, the grandparents were awarded supervised visitation with the child. Over time, the grandparents' visitation rights were expanded until, ultimately, the grandparents and the foster parents had custody of the child on alternating weeks.

On October 30, 2020, the foster parents, represented by counsel, filed in the Elmore Juvenile Court a verified dependency complaint and petition seeking custody of the child. Four days later, on November 3,

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2020, the foster parents filed in the Elmore County Probate Court a petition to adopt the child. The mother executed a consent-to-adoption document on November 30, 2020. The attorney for the foster parents notarized that consent document. On December 2, 2020, because of the pending dependency and custody actions in the Elmore Juvenile Court, the Elmore County Probate Court entered a temporary stay in the adoption action that was to remain in effect until the dependency and custody actions were concluded.

On December 23, 2020, despite already having filed an adoption petition in the Elmore County Probate Court, the foster parents filed a petition to adopt the child in the Jefferson County Probate Court.

The Elmore Juvenile Court scheduled a final dispositional hearing on each of the three pending dependency and custody petitions (the petitions filed by the Elmore County DHR, the grandparents, and the foster parents) for February 22, 2021. By that time, the foster parents' attorney was also representing the mother. It is unclear from the record when that attorney's representation of the mother began. On February 22, 2021, the Elmore Juvenile Court entered an order stating:

"At 6:36 a.m. on the day of trial, a Motion to Stay was filed by [the attorney], on behalf of his clients, [the mother] and [the
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foster parents]. The basis of the motion was that an adoption had been filed in another County in this State, and that the Mother and the Father had filed consents to the adoption of the child by the Foster Parents."

The Elmore Juvenile Court rescheduled the final dispositional hearing for late June 2021. It also ordered that, beginning February 23, 2021, the grandparents were to have custody of the child for a week, then the foster parents were to have the child for a week; the Elmore Juvenile Court stated that the "week on/week off" visitation schedule was to remain in effect until the final dispositional hearing.

The foster parents filed a motion to dismiss the adoption petition pending in the Elmore County Probate Court. In an order entered March 24, 2021, that court dismissed that adoption action, noting that, in their motion, the foster parents had asserted that the dismissal of the action was in the child's best interest.

Meanwhile, the Jefferson County Probate Court set a hearing in the foster parents' adoption action then pending in that court for April 6, 2021. On March 25, 2021, the grandparents moved to continue that hearing and to transfer that adoption action to the Elmore Juvenile Court. In their motion, the grandparents stated that they had learned of the filing of the adoption petition in Jefferson County Probate Court on

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March 19, 2021, and pointed out that the Elmore Juvenile Court had scheduled a final dispositional hearing in the proceedings pending in that court.

The Jefferson County Probate Court held a hearing in the adoption action, and on August 17, 2021, it entered an order finding that the foster parents, the grandparents, and the child were all Elmore County residents and had been since the child's birth. It also noted that the Elmore County DHR had custody of the child and that the Jefferson County Department of Human Resources has never been involved with the child. The Jefferson County Probate Court ordered that, on the authority of § 26-10A-21, Ala. Code 1975, the adoption petition should be transferred to the Elmore Juvenile Court and consolidated with the actions pending in that court.[3]

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After the Jefferson County Probate Court transferred the adoption petition to the Elmore Juvenile Court, the foster parents moved the Elmore Juvenile Court to have the adoption action heard before the dependency and custody actions. The Elmore Juvenile Court denied the motion, and all the pending actions proceeded to trial at the same time.

At trial, Special Agent Jared Roberson of the State Bureau of Investigation ("the SBI"), who conducted the investigation of whether the grandparents had been involved in the injury of the child, testified that the SBI had found no evidence indicating that the grandparents had harmed the child or had known that the child was being harmed. He also said that, at one point during the investigation, the mother had confessed to injuring the child.

Leah Graham, a social worker with the Chilton County Department of Human Resources (see note 1, supra) testified that she had observed

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the child with both the grandparents and the foster parents and had detected no issues with the child at either the grandparents' home or the foster parents' home. Graham testified that, early in the proceedings, when the grandparents' visitation was supervised and limited, the child did not seem to want to spend time with the grandparents. However, she noted, that had been two years earlier, and, she said, since the grandparents' visitation had been expanded and they had had more contact with the child, the child seemed more relaxed with them.

Sonia Martin, a bonding expert who prepared a report regarding the attachment between the child and the foster parents and the child and the grandparents, observed the same behavior. In her initial evaluation, prepared July 6, 2020, Martin said that the child did not appear to have bonded with the grandparents, although, she observed, they obviously loved the child. However, in an addendum dated November 8, 2020, Martin said, "[r]emarkably, [the child] exhibits behavior that is a far departure from his previous responsiveness to the [grandparents]." In the addendum, she gave examples of the child's "substantial positive change" in his interactions with the grandparents. At the time she prepared the addendum, Martin recommended that the

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grandparents' visitation be further increased. We note that, in their brief on appeal, the foster parents did not mention the addendum and relied only on Martin's initial evaluation in making their arguments to this court.

Graham testified that, at the time of the trial, the Elmore County DHR's permanency plan for the child was relative placement with transfer of custody to the grandparents. The concurrent plan was adoption by the foster parents. She added that the Elmore County DHR did not believe that it needed to continue to be involved in this matter.

The grandmother testified that she was concerned that the foster mother had trouble saying "no" to the mother and observed that the foster mother had allowed the mother to be with the child without Elmore County DHR's supervision, in violation of the Elmore County DHR's instructions. Additionally, the grandmother read from a court order that explicitly stated that there was to be no contact between the mother and the child unless the bonding expert requested it to enable her to conduct further observations between the child and the parties.

The foster mother said that, early on, she had expressed concerns about the grandparents having unsupervised visitation with the child

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and that it was her job as a foster mother to voice those concerns. She also said that, at the initial individual-service-plan ("ISP") meetings with the parties and the Elmore County DHR, she told the group that, when the grandparents had started seeing the child, the child had not done well with them, and she added that to bring such matters to light "is my job as a mother." However, she said, she never objected to anything the Elmore County DHR had ordered her to do.

The foster mother...

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