R.E.H. v. Y.S.-T.

Decision Date20 November 2020
Docket Number2190344
Citation327 So.3d 248
Parties R.E.H., Jr. v. C.T. and Y.S.-T.
CourtAlabama Court of Civil Appeals

Christopher L. Davis, Bessemer, for appellant.

Submitted on appellant's brief only.

HANSON, Judge.

R.E.H., Jr. ("the father"), is the father of L.T. ("the child"). The father is also an "adult sex offender" by virtue of his 2014 conviction for the offense of sexual abuse in the first degree. See § 15-20A-4(1), § 15-20A-5(7), and § 13A-6-66, Ala. Code 1975. Because of the nature of the father's sex offense -- sexual contact by forcible compulsion of his then 16-year-old stepdaughter, see 13A-6-66(a)(1) -- to which he pleaded guilty, the father is prohibited by the provisions of the Alabama Sex Offender Registration and Community Notification Act ("the Act"), § 15-20A-1 et seq., Ala. Code 1975, from residing with the child. In this case, a dependency proceeding regarding the child, the Jefferson Juvenile Court, Bessemer Division ("the juvenile court") specifically concluded that, under the facts and circumstances of this case -- the child's mother, C. To. ("the mother") had stipulated that the child was dependent and the father was prohibited from residing with the child by § 15-20A-11(d), Ala. Code 1975 -- the child was, as a matter of law, dependent. The father has appealed from that judgment, contending that the juvenile court erred in finding the child dependent based on the fact that § 15-20A-11(d) prohibits the father from residing with the child; he also contends that § 15-20A-11(d) is unconstitutional. We affirm.

Facts and Procedural History

The child was born on July 13, 2012. The mother and the father were not married. On December 12, 2018, C.T. and Y.S.-T., the child's maternal grandparents ("the grandparents"), filed a dependency petition in the juvenile court asserting that the mother was unable to care for the child. Following a shelter-care hearing, a pendente lite custody order was entered by the juvenile court that placed the child with the grandparents and granted the father supervised visitation. The grandparents and the guardian ad litem appointed to represent the child subsequently moved to terminate the father's visitation on the grounds that paternity of the child had not been formally established and because the father was a convicted sex offender. Court-ordered genetic testing confirmed that the father was the child's biological father, and the father's parentage of the child was formally adjudicated by the juvenile court on September 27, 2019.

A dependency hearing before an appointed juvenile-court referee was conducted on January 13, 2020. Before that hearing, the grandparents had filed a motion in support of their dependency petition, asserting that, because he was conclusively prohibited by § 15-20A-11(d)(5) from residing with the child, the father was unable to discharge his responsibilities to and for the child. At the outset of the dependency hearing, the father stipulated that he had been convicted of sexual abuse in the first degree pursuant to § 13A-6-66(a)(1), which provides that "[a] person commits the crime of sexual abuse in the first degree if he ... [s]ubjects another person to sexual contact by forcible compulsion." He further stipulated that the victim had been his stepdaughter; that the victim had been born on December 13, 1996; that he had been married to the victim's mother on April 4, 2013; that the year of the offense had been 2013; and that the victim had lived with the father until 2011 but had not lived with the father at the time of the offense.

After receiving the above stipulations, the juvenile-court referee presiding over the dependency hearing stated the following:

"Okay. All right. Then I am going to find [the] child to be dependent as to [the father] under [§] 15-[20A]-11, [and] the [Act]....
"So I'm not saying that this makes sense morally or legally or socially. But under the law as it currently stands, you're just not permitted to have any overnight visitation with a minor child whether it's your child or not your child. And ... that being the case, I can't say that you're able to adequately discharge your responsibility as a parent to a child that you aren't even allowed to have into your home to live with you. So, I'm going to find the child to be dependent."

The father made an on-the-record objection to the juvenile-court referee's determination that, based on the application of § 15-20A-11(d) in this case, the father was unable "to adequately discharge [this] responsibility as a parent" and, thus, that the child was dependent. He did not, however, seek to offer additional evidence, including evidence concerning whether he had the ability to parent the child notwithstanding the legal limitations imposed upon him because of his sex-offender status. As noted earlier, the mother stipulated to the child's dependency. Other than the stipulations of the parties, no further evidence or testimony was offered or received at the dependency hearing.

On January 13, 2020, the juvenile-court referee entered his findings and recommendations, concluding that the child was dependent and vesting custody with the grandparents. With regard to the father, the referee reasoned:

"The parties stipulate that [the father] has been previously convicted of Sexual Abuse in the 1st Degree under Ala. Code[ 1975,] § 13A-6-66(a)(1) (sexual contact by forcible compulsion), that the victim in that case was born 12-13-1996 and was 16 [years old] at the time of the offense, and that [the father] was married to the victim's mother on 4-4-13, that [the father] lived with the victim until some time in 2011, but at the time of the offense in 2013, he did not reside with her.
"Therefore, under at least one and perhaps all three of the provisions of [Ala. Code 1975,] §§ 15-20A-11(d)(2), (3) and (5), [the father] is not permitted to reside with or have overnight contact with a minor, even a biological child. Because of this prohibition, [the father] is unable to adequately exercise his paternal responsibility to care for a child, and [the child] is hereby found to be dependent solely on that basis per Ala. Code[ 1975, §§] 12-15-102(8)(a)(2) and (6) as to the father. Note that [the father] objects to the child being found dependent as to him solely on the basis of the limitation imposed on him by operation of Ala. Code[ 1975,] § 15-20A-11(d)."

The juvenile court ratified the findings and recommendations of the juvenile-court referee on January 13, 2020. This appeal timely followed.

Analysis

The father first challenges the juvenile court's dependency determination. This court has stated that, in a dependency case, "[a] petitioner must present clear and convincing evidence that a child is dependent pursuant to § 12-15-102(8)(a), Ala. Code 1975." J.W. v. T.D., 58 So. 3d 782, 788 (Ala. Civ. App. 2010). Section 12-15-102(8)(a) defines a "dependent child," in pertinent part, as follows:

"A child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:
"....
"2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
"....
"6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child."

Although a juvenile court's judgment in a dependency action in which evidence was presented ore tenus typically will not be reversed absent a showing that the juvenile court's ruling was plainly and palpably wrong, when the issue presented on appeal is a question of law, this court's review is de novo, and no presumption of correctness attaches to the juvenile court's judgment. See J.P. v. S.S., 989 So. 2d 591, 598 (Ala. Civ. App. 2008).

In this case, it was undisputed that the father had been convicted of first-degree sexual assault of a minor by forcible compulsion, a violation of § 13A-6-66(a)(1).1 As such, he qualified as an "adult sex offender" and is prohibited by § 15-20A-11(d) from residing with a minor, even if the minor is his own child. Section 15-20A-11(d) provides, in pertinent part:

"No adult sex offender shall reside or conduct an overnight visit with a minor. Notwithstanding the foregoing, an adult sex offender may reside with a minor if the adult sex offender is the parent, grandparent, stepparent, sibling, or stepsibling of the minor, unless one of the following conditions applies:
"....
"(2) The adult sex offender has been convicted of any sex offense in which any of the minor children, grandchildren, stepchildren, siblings, or stepsiblings of the adult sex offender was the victim.
"(3) The adult sex offender has been convicted of any sex offense in which a minor was the victim and the minor resided or lived with the adult sex offender at the time of the offense.
"....
"(5) The adult sex offender has been convicted of any sex offense involving forcible compulsion in which the victim was a minor."

Furthermore, the Act contains the following definition of the term "reside":

"To be habitually or systematically present at a place. Whether a person is residing at a place shall be determined by the totality of the circumstances, including the amount of time the person spends at the place and the nature of the person's conduct at the place. The term reside includes, but is not limited to, spending more than four hours a day at the place on three or more consecutive days; spending more than four hours a day at the place on 10 or more aggregate days during a calendar month; or spending any amount of time at the place coupled with statements or actions that indicate an intent to live at the place or to remain at the place for the periods specified in this sentence. A person does not have to conduct an overnight visit to reside at a place."

§ 15-20A-4(20).

In K.E.W. v. T.W.E., 990 So. 2d 375 (Ala. Civ. App. 2007), this court, applying former § 15-20-26(c), Ala. Code 1975, the ...

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