K.R. v. Lauderdale Cnty. Dep't of Human Res.
| Decision Date | 19 April 2013 |
| Docket Number | 2120020,2111220 |
| Parties | K.R. v. Lauderdale County Department of Human Resources J.W. v. Lauderdale County Department of Human Resources |
| Court | Alabama Court of Civil Appeals |
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Appeals from Lauderdale Juvenile Court
(JU-10-176.05)
D.N.R. was born in Pennsylvania on July 26, 1993. D.N.R.'s father is unknown, and T.D. ("the biological mother") consented to the termination of her parental rights on June 26, 1998, in the Court of Common Pleas of Lawrence County, Pennsylvania ("the Pennsylvania court"). D.N.R. lived with W.R.M. until W.R.M.'s death; however, the record does not reveai whether W.R.M. adopted D.N.R. W.R.M. was survived by her husband J.M.
The record contains a copy of the Pennsylvania court's August 9, 2006, judgment that incorporated a consent agreement entered into by J.M. and J.W. ("the custodian"), the sister of W.R.M.1 The Pennsylvania court awarded primary physical custody and sole legal custody of D.N.R. to the custodian and awarded J.M. visitation and the right to review D.N.R.'s medical, dental, psychiatric, psychological, and academic records. The judgment of the Pennsylvania court included a provision in which K.R. ("the custodian's sister") wouldreceive custody of D.N.R. upon the incapacitation or death of the custodian.2 D.N.R. moved to Alabama with the custodian in 2006.
On July 18, 2011, D.N.R.'s guardian ad litem filed a petition in the Lauderdale Juvenile Court asserting that D.N.R. was dependent and requesting that her custody be awarded to the Lauderdale Department of Human Resources ("DHR"). The petition alleged that D.N.R. lived with the custodian, that D.N.R.'s mother was deceased and her father was unknown, that the custodian was not providing for D.N.R.'s care, support, or education, and that D.N.R.'s health, safety, and well being were at risk. A shelter-care hearing was set for July 20, 2011. At the shelter-care hearing, the juvenile-court judge stated: "We are here today for a determination of the dependency and a 72-hour hearing." DHR's attorney and D.N.R.'s guardian ad litem stipulated to D.N.R.'s dependency; however, the custodian, who was acting pro se, never stipulated to D.N.R.'s dependency; she admitted only that D.N.R. had "a lot of issues."
Nothing asserted in the pleadings or stated at the shelter-care hearing would have revealed the existence of the judgments of the Pennsylvania court to the juvenile court, although we note that the action underlying these appeals is case number JU-10-176.05 and it is apparent to this court that D.N.R. had been before the juvenile court at least three other times. Before witnesses were called, the attorneys and the juvenile-court judge had a discussion regarding a certain delinquency charge against D.N.R. in "the .04 case" that was scheduled to be heard by the juvenile court later that same day.3
At the time of the July 20, 2011, shelter-care hearing, D.N.R. had lived with the custodian for more than five years; however, the juvenile-court judge questioned the custodian as to whether she had "paperwork showing that [she] ha[d]custody," to which the custodian replied: "Not with me." The juvenile-court judge said:
Sarah Hendershot, a DHR employee, testified that DHR could not "establish who the legal guardian is right now." The juvenile court heard testimony that DHR had treated D.N.R. "like a teenager that was found on the street" because DHR had no proof that the custodian had legal custody of D.N.R., although Hendershot also agreed that D.N.R. was accompanied in the shelter-care hearing by her "physical custodian, her aunt," who "was providing home, supervision, and custody for [D.N.R.]." Hendershot testified that DHR had received information indicating that the custodian had been "possibly emotionally abusive" and had made "harmful statements" to D.N.R. Hendershot said that if the juvenile court awarded D.N.R.'s custody to DHR, part of the services provided to the custodian would be the determination of the "status ofcustody." The juvenile court neither appointed an attorney for the custodian nor afforded her an opportunity to testify or to examine Hendershot. The following exchange took place at the end of the shelter-care hearing:
On July 21, 2011, the juvenile court entered its order, transferring pendente lite custody of D.N.R. to DHR, and, in a handwritten addition to its findings, it included a sentencethat reads: "The Court finds the minor child dependent." The custodian did not appeal the July 21, 2011, judgment.
D.N.R. was placed in a foster home, and the juvenile court set an adjudicatory hearing for August 26, 2011. On July 26, 2011, D.N.R. reached 18 years of age. A transcript of the August 26, 2011, adjudicatory hearing is included in the record. At that hearing W.R.M. was referred to as the "adopted mother" and the custodian was referred to as "the guardian." The custodian was represented by an attorney at the August 26, 2011, hearing. DHR offered a report into evidence in which it confirmed that the custodian had been D.N.R.'s legal guardian and asserted that D.N.R. had been "diagnosed with Mental Retardation." The custodian stipulated to D.N.R.'s dependency, and the juvenile court entered a judgment on August 26, 2011, again adjudicating D.N.R. dependent. The custodian did not appeal the August 26, 2011, judgment.
The case was set for a review hearing in January 2012, and, on January 30, 2012, the juvenile court entered an order in which it found "that reasonable efforts toward reunification [with the custodian] have been made, and themost appropriate plan is Adult Custodial Care." The custodian did not appeal the January 30, 2012, judgment. DHR placed D.N.R. with the biological mother in Pennsylvania in June 2012.
On June 27, 2012, the custodian's sister filed a motion to intervene for the purpose of seeking custody of D.N.R. On July 20, 2012, the biological mother and her partner, M.J.K., filed a petition for custody of D.N.R. That same day, the juvenile court signed a permanency-hearing-order form that included its findings that DHR had made reasonable efforts to reunite D.N.R. with the custodian and that, as of July 12, 2012, D.N.R. should be "returned to [the biological mother]" who was denoted as "the parent." The custodian and the custodian's sister opposed D.N.R.'s change of custody in several filings, including an emergency motion for the return of D.N.R. to Alabama and a motion for the appointment of a different guardian ad litem. A permanency hearing was held on July 20, 2012.
At the July 20, 2012, permanency hearing, Labrisca Cook, a DHR employee, was the only witness called to testify. Cook recommended that D.N.R.'s permanency plan should be "return toparent," referring to the biological mother as the parent. Cook said that D.N.R. had been in foster care for one year and that at the time of the hearing she had been placed with the biological mother for one month. According to Cook, the biological mother was an approved foster parent in Pennsylvania; her house was approved by the Lawrence County Children and Youth Services in New Castle, Pennsylvania, and the Federal Bureau of Investigation had completed background checks on the biological mother. Cook testified that the biological mother and M.J.K. were capable of providing financially for D.N.R. and that D.N.R. desired to live with the biological mother. Cook stated that DHR had investigated the reason for which the biological mother's parental rights had been terminated; however, she admitted that that investigation consisted of nothing more than asking the biological mother for explanation of the reason.4
According to Cook, D.N.R. did not desire to live with the custodian, the custodian had not visited with D.N.R. in thepast year, and the custodian had attended only two of three Individualized Service Plan meetings regarding D.N.R. She testified that, during the time that D.N.R. had lived with the custodian, D.N.R. had not had a bedroom in the custodian's "spacious" house, although a younger child had a large bedroom with an attached bathroom. Cook said that D.N.R. had slept in a "little loft" that was not enclosed. Cook testified that the custodian had been "indicated [for] physical...
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