Marshall Cnty. Dep't of Human Res. v. J.V. (Ex parte Marshall Cnty. Dep't of Human Res.)

• Decision Date: 08 March 2019
• Docket Number: 1170727
• Citation: 288 So.3d 483
• Parties: EX PARTE MARSHALL COUNTY DEPARTMENT OF HUMAN RESOURCES (In re: Marshall County Department of Human Resources v. J.V.)
• Court: Alabama Supreme Court

288 So.3d 483

EX PARTE MARSHALL COUNTY DEPARTMENT OF HUMAN RESOURCES

(In re: Marshall County Department of Human Resources

v.J.V.)

1170727

Supreme Court of Alabama.

March 8, 2019

Steve Marshall, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for petitioner.

E. Shane Hollaway of Hollaway Law Office, Guntersville, for respondent.

PER CURIAM.

We 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.

Facts and Procedural History

In Marshall County Department of Human Resources v. J.V., 203 So.3d 1243 (Ala. Civ. App. 2016) (" J.V. I"),¹ 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 nurse examiner.

"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 father.

"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. SeeMarshall 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 following:

" ‘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 in Georgia.

" ‘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 in school.’

"... [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.

" ‘[2]. 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]:

" ‘....

" ‘[3]. 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 omitted subparagraphs]:

" ‘....

" ‘[4]. On June 12, 2015, physical custody of the minor child shall be placed with her father pending further Order of the court.

" ‘[5]. 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.

" ‘[6]. The child and father shall continue to participate and cooperate with counseling with Dr. Eassa, a licensed psychologist.

" ‘[7]. 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).

On June 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, 2015."

DHR appealed the juvenile court's order to the Court of Civil Appeals.

In 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 follows:

"She had been counseling the child and

...