R.B.O. v. Jefferson County Department of Human Resources
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REL: 04/01/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h eadvance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2010-2011 2091019 R.B.O. v. J e f f e r s o n County Department o f Human Resources Appeal from J e f f e r s o n J u v e n i l e Court (JU-08-52475) MOORE, Judge. R.B.O. Jefferson visits ("the f a t h e r " ) J u v e n i l e Court with appeals from a judgment of the d e c l i n i n g t o award h i m u n s u p e r v i s e d M.S. ( " t h e c h i l d " ) . We reverse. 2091019 On August 26, Human R e s o u r c e s that the ("the 2008, child was mother"), had with a m a l e , who order an due o r d e r was was entered drug a l s o had an extensive history the child child awarding September and child order On legal entered and that same on abuse. day. 2008, a f t e r of the held, and child. custody grandmother ("the 2009, continuing custody of the order of the maternal visitation. h e l d on F e b r u a r y 6, 2, 2009, finding child the with February the 6, 2009, t h e juvenile f a t h e r to submit court entered to p a t e r n i t y testing. an the order On 2 0 0 9 , t h e j u v e n i l e c o u r t e n t e r e d an o r d e r e s t a b l i s h i n g father's A which an awarding February had residing of drug the mother s u p e r v i s e d h e a r i n g was abuse, was custody h e a r i n g was 2008, and mother grandmother. requiring 18, was dependent maternal DHR 15, awarding A further dispositional an entered the c h i l d ' s maternal grandmother"), and was h e l d on A u g u s t 2 7 , a dispositional to J.S., overdose, of alleging child's drug a for on of to entered Subsequently, the extensive history s h e l t e r - c a r e h e a r i n g was an Department a dependency p e t i t i o n d e p e n d e n t b e c a u s e A.A., hospitalized pickup J e f f e r s o n County ("DHR") f i l e d been A the paternity of the child. 2 On June 18, 2009, June the the 2091019 juvenile court entered father had been noting that 2009, continuing visitation, parents, A adjudicated the child grandmother, a dispositional ordering and o r d e r i n g dispositional 2010, of the child's the t h e mother DHR child that the legal father, the was supervised certain services held on J u n e entered visitation. a judgment to the DHR. 22, 2010, a t heard evidence regarding be a w a r d e d u n s u p e r v i s e d whether the On J u l y 1 3 , stating: "The C o u r t d o e s a c k n o w l e d g e t h a t t h e f a t h e r h a s made many c h a n g e s t o b e t t e r h i s p o s i t i o n i n t h i s c a s e . The C o u r t c a n n o t d i s r e g a r d t h e f a c t t h a t t h e f a t h e r r e m a i n s on p a r o l e , h a s no v a l i d driver's license, has not p a i d child support and has a r e l a t i o n s h i p w i t h a woman t h a t h a s l o s t c u s t o d y o f a t l e a s t two o f h e r c h i l d r e n t h r o u g h t h i s c o u r t . "The mother this time. makes no request "After sworn testimony e x h i b i t s t h a t were p r o p e r l y o r d e r s as f o l l o w s : f o r a change at and c o n s i d e r i n g a l l introduced this court "1. That custody of [ t h e c h i l d ] remains with [ t h ematernal grandmother]. shall vested "2. V i s i t a t i o n f o r [ t h e ] m o t h e r a n d [ t h e ] f a t h e r r e m a i n as p r e v i o u s l y ordered. 3 6, maternal a l l p a r t i e s cooperate with hearing the j u v e n i l e court with and t h e f a t h e r to provide that which the j u v e n i l e court father should noting h a d b e e n f o u n d d e p e n d e n t on F e b r u a r y custody awarding as order 2091019 " 3 . The case i s closed, and court costs taxed as paid." On July to t h i s court his 26, 2010, court. On exceeded visitation In 71(a)(4), the filed his notice f a t h e r argues that i t s discretion in declining his be Ala. cases, visitation, Code the j u v e n i l e court and of the appeal juvenile request that unsupervised. over the " w e l f a r e father appeal, dependency discretion the 1975. shall 1 a juvenile pursuant That exercise Code to court possesses former § section 12-15- provided i t s d i s c r e t i o n according best i n t e r e s t s of the child." 2 Notably, that to that B e c a u s e t h e u n d e r l y i n g d e p e n d e n c y a c t i o n was f i l e d b e f o r e the o p e r a t i v e date of the c u r r e n t Alabama J u v e n i l e J u s t i c e A c t , § 1 2 - 1 5 - 1 0 1 e t s e q . , A l a . C o d e 1975 ( e f f e c t i v e J a n u a r y 1, 2009), i t i s g o v e r n e d by the f o r m e r Alabama J u v e n i l e J u s t i c e A c t , f o r m e r § 12-15-1 e t s e q . , A l a . Code 1975. 1 DHR argues that the father's petition should be i n t e r p r e t e d as a r e q u e s t t o m o d i f y a p r e v i o u s visitation j u d g m e n t , w h i c h may b e g r a n t e d o n l y u p o n p r o o f o f a m a t e r i a l change of c i r c u m s t a n c e s . N.T. v . P.G., [Ms. 2 0 9 0 3 4 2 , J u l y 3 0 , 2010] So. 3 d ( A l a . C i v . App. 2010). We d i s a g r e e . A p e t i t i o n t o m o d i f y m u s t be f i l e d o n l y a f t e r a f i n a l j u d g m e n t has been e n t e r e d t h a t i s i n t e n d e d t o f i x t h e v i s i t a t i o n r i g h t s o f a n o n c u s t o d i a l p a r e n t b a s e d on t h e n - e x i s t i n g c o n d i t i o n s . The j u v e n i l e c o u r t d i d n o t e n t e r a f i n a l v i s i t a t i o n j u d g m e n t ; i t m e r e l y o r d e r e d t h e v i s i t a t i o n b e t w e e n the f a t h e r and the child t o be supervised while DHR provided reunification s e r v i c e s t o t h e f a m i l y as p a r t o f an o n g o i n g d e p e n d e n c y c a s e . Hence, the f a t h e r d i d not have to f i l e a m o d i f i c a t i o n p e t i t i o n 2 4 2091019 standard i s identical to the standard used f o r determining visitation noncustodial parents See rights of C a r r v . B r o y l e s , 652 ("[T]he p r i m a r y rights and a noncustodial welfare held that, under limit a parent's misconduct of at the 304 C i v . App. 265, 272 must appropriate, as see 2010) interests in parent and always Carr, standard, on by Haraway, the trial best this in court order misconduct, evidence 537 the child." So. 2d court in "to the that the 652 946, a l s o E x p a r t e T h o m p s o n , 51 ("A 1994) visitation In based v. the is child."). supported cases. ( A l a . C i v . App. i s detrimental to Jones 1988)); (Ala. be parent visitation privileges the best 303 best-interests (citing (Ala. the visitation ordered 2d of the limitation So. 2d 299, consideration in establishing accorded interests So. i n divorce the So. 947 3d establishing f o r a n o n c u s t o d i a l p a r e n t must c o n s i d e r w e l f a r e of the minor this case, set child c o n d i t i o n s on and, where visitation and p r o v e a m a t e r i a l change of c i r c u m s t a n c e s i n o r d e r t o have the j u v e n i l e court address h i s p e t i t i o n . See S.P. v . E.T., 957 So. 2 d 1127 ( A l a . C i v . App. 2005) . We n o t e , h o w e v e r , t h a t , even i f the f a t h e r had been r e q u i r e d t o prove a m a t e r i a l change of circumstances, the record contains sufficient e v i d e n c e o f a c h a n g e o f c i r c u m s t a n c e s , as i s n o t e d i n t h e f i r s t sentence of the j u v e n i l e c o u r t ' s judgment, t o warrant a redetermination of whether unsupervised v i s i t a t i o n would serve the best i n t e r e s t s of the c h i l d . 5 2091019 that protect the child."). f a t h e r argues t h a t the in requiring his without juvenile court visitation receiving visitation Seizing with evidence w o u l d be detrimental be detrimental record had to the the 39 burglary and related that he was to be supervised that unsupervised child. r e c o r d , we f i n d no juvenile court time the J u l y 2010 The evidence father the would found, the judgment was father t e s t i f i e d that on p a r o l e p e r t a i n i n g t o i n c i d e n t s charges of which occurred compliant child the on p a r o l e . days l e f t stolen property, As at the f a t h e r was o r 40 the the exceeded i t s d i s c r e t i o n the to language, v i s i t a t i o n w i t h the child. d o e s show t h a t , entered, he that unsupervised that indicating After carefully reviewing indicating on with possessing i n 2004. a l l the of receiving father The and testified conditions of his parole, i n c l u d i n g w e e k l y d r u g t e s t i n g , w h i c h had p r o d u c e d c o n s i s t e n t l y negative results. current criminal record also how the r e c o r d does not charges shows c l a s s e s as o r d e r e d indicate The that by the pending the father c o n t a i n any against had the 6 father. completed juvenile court. facts that the evidence f a t h e r was The on The parenting r e c o r d does parole of or not that 2091019 the father properly had care The a criminal past f o r the child would during f a t h e r t e s t i f i e d t h a t he driver's l i c e n s e but t h a t he still i f he indicates were that the awarded drive with unsupervised in his father that transport the of been child record to an the there in does undue the not risk driver's in child end working of for child an record would event of indicate of harm an that of his father father's house h i s nephew twice be a the child of the is but month. available emergency. because every The father's and the to At the would be father's license. The a marble his average adult support but 2009. that and The in The daytime. for his sister f a t h e r t e s t i f i e d t h a t he month since stay his testified responsible a valid The per a the subjected lack house w i t h father only Apparently, least, father's permanent r e s i d e n c e they Alabama father requested unsupervised v i s i t s lives a l s o the the visits. the to visitation. d r o v e when n e c e s s a r y . Saturday f o r eight hours during The ability have a v a l i d other girlfriend. his unsupervised d i d not f a t h e r t e s t i f i e d t h a t he w o u l d n o t vehicle impair had that father and been o r d e r e d t o pay he had granite 7 had not obtained $100 paid anything a job and installation had business 2091019 for two job weeks a t the time of he had in worked i n d i c a t e the was ordered indicate support Carr, that landscaping. the child court he the The obtaining record received record having financial problems. improper to that i t is stopped paying with his or her child parent's failure meet his or her relating to M.D.C., 39 right to So. child. The 1131 Thus, s u p p o r t does not order 1117, 3d visitation support). in 652 "a i s independent the failure court the I t was t i m e of the father of the 304; of see of her undisputed the the trial approximately and that a month the obligations also duty Ex parte to the pay child to father a that pay child be restricted woman the father [who] has c h i l d r e n through the she f a t h e r was had before 8 of a child. with that In (recognizing that c o r r e c t l y noted relationship c u s t o d y o f a t l e a s t two court." at ( A l a . 2009) t o p r e v e n t harm t o in 2d because i n d i c a t e that v i s i t a t i o n should juvenile involved So. child restrict financial he however, had visitation the not since does, parent's to that does father was held The f a t h e r had support. reason because this t r i a l ; before amount o f income t h e t o pay was the [the was lost juvenile] A.H. at stopped l i v i n g with the the trial, dating although the 2091019 reason for her move was disputed. None o f h e r c h i l d r e n l i v e with her, regularly. A.H. dependency proceedings. A.H. juvenile court lost custody ordered of t h r e e The him but father to keep has two five of of her them v i s i t child that, i f away f r o m A.H. likewise testified she stay away f r o m t h e Any A.H. by any harm t o the could means t h a n have child been ordering order to from the visitation outside Jackson, 999 J., Pittman to with So. the 2d 488, and pertinent issue) t h a t the presence 495 through less visitation. j u v e n i l e c o u r t c o u l d have o r d e r e d child. of For example, A.H. See Jackson 2007) Thomas, J J . , c o n c u r r i n g i n the result concern about H e n c e , we hold that requiring visitation any r e l a t i o n s h i p between the harm t o the f a t h e r and 9 child A.H. t o be not as influence visitation around supervised). emanating was v. (Per Moore, p r o v i s i o n r e s t r i c t i n g mother from e x e r c i s i n g v i s i t a t i o n i n s t e a d of the father exercise his ( A l a . C i v . App. ( h o l d i n g t h a t any restrictive of mother's b o y f r i e n d s h o u l d have been a d d r e s s e d by boyfriend that father's relationship with ameliorated supervised the A.H., he w o u l d c o m p l y w i t h t h a t o r d e r . would abide her c h i l d r e n through testified the children. a from the sufficient 2091019 ground f o r o r d e r i n g a l l the to be than c o u r t d i d not the cite unsupervised father points visitation In child supervised. Other for f a t h e r ' s v i s i t a t i o n w i t h the Carr, any this that his above, In h i s b r i e f 3 he currently teenage court, v i s i t a t i o n w i t h the addressed reason f o r denying the visitation. out with factors in from reversing juvenile father's to this request court, the enjoys former a an unsupervised relationship. award of supervised at i s s u e , noted t h a t the mother was l i v i n g w i t h another of her c h i l d r e n "and the record concern d e m o n s t r a t e [ d ] any child i n her case, the anything with child son the care." record 652 does So. not other than t h a t the his demonstrate other that child. his other 2d [ t h a t ] nothing about the at contain 304. any father enjoys The record child has welfare of Likewise, evidence in th[e] in this indicating a good r e l a t i o n s h i p certainly been does endangered not by I n a d d i t i o n t o the above f a c t o r s , a w i t n e s s for DHR t e s t i f i e d t h a t the f a t h e r ' s v i s i t a t i o n w i t h the c h i l d should b e s u p e r v i s e d b a s e d on t h e f a c t s t h a t t h e f a t h e r h a d a t one t i m e a b u s e d i l l e g a l d r u g s a n d t h a t he h a d o n l y relatively r e c e n t l y s t o p p e d a t t e n d i n g a methadone c l i n i c . The j u v e n i l e c o u r t , however, a p p a r e n t l y r e j e c t e d the f a t h e r ' s p a s t d r u g use as a g r o u n d f o r d e n y i n g u n s u p e r v i s e d v i s i t a t i o n b e c a u s e i t d i d not mention t h a t circumstance i n i t s judgment. 3 10 2091019 unsupervised evidence visitation undermines unsupervised A the dependency who has retains with the c h i l d . I t i s i n the best when n e c e s s a r y child. parte interest child So. In , P.D. 3d awarded So. things, 3d that at the . to A l a . Code to r e s t r i c t safety, supra. A v. infringes Pratt, [Ms. ( A l a . C i v . App. 2011), the only or welfare of juvenile court overbroad at mother, P.D. Montgomery Aug. issue were Juvenile 3d Court dependent arguing, Court So. Juvenile supervised appealed, 20, 2010). J a n . 21, 2011] P.D., 11 on t h e p a r e n t - 2090249, t h e Montgomery children the children's right t h a t does more t h a n i s n e c e s s a r y t o , the through with h i s or her parent v . S.S. , [Ms. 2 0 9 0 3 0 1 , that residual the health, Pratt ( A l a . C i v . App. determined that father child § 12-15-1(24), and t h e r e b y unduly relationship. a h o w e v e r , when i t i m p o s e s an on v i s i t a t i o n the c h i l d 2010] the of a c h i l d Thompson, exceeds i t sd i s c r e t i o n , protect i n Carr, deny of the Former to protect Ex restriction As to custody manner o f h i s o r h e r v i s i t a t i o n the father. decision lost proceedings visitation the visitation. parent 1975. with and visitation. among had other erred in 2091019 r e q u i r i n g her v i s i t a t i o n This court t o be supervised. So. 3d a t . reasoned: "We a l s o agree w i t h [P.D.] t h a t t h e j u v e n i l e court erred in awarding her only supervised v i s i t a t i o n w i t h t h e c h i l d r e n . The record reveals that [P.D.] has never abused the children. Additionally, the record shows that, since the [ c h i l d r e n ' s ] a u n t was g i v e n c u s t o d y o f t h e c h i l d r e n , [P.D.] has v o l u n t a r i l y e n r o l l e d h e r s e l f i n p a r e n t i n g c l a s s e s . A l t h o u g h t h e a u n t , i n h e r ex p a r t e m o t i o n , h a d a l l e g e d t h a t [ P . D . ] was l i v i n g w i t h a k n o w n d r u g d e a l e r , t h a t a l l e g a t i o n was not s u b s t a n t i a t e d at t r i a l . In l i g h t of the l a c k of evidence i n d i c a t i n g that [P.D.] h a d ever abused the c h i l d r e n or had placed the children in harm's way, supervised v i s i t a t i o n was i m p r o p e r . C f . J a c k s o n v . J a c k s o n , 999 So. 2 d 4 8 8 , 494 ( A l a . C i v . App. 2007) (main o p i n i o n i n d i c a t i n g that l i m i t i n g a parent's v i s i t a t i o n to s u p e r v i s e d v i s i t a t i o n w o u l d be i m p r o p e r when the mother had been a r r e s t e d o n l y f o r w r i t i n g w o r t h l e s s c h e c k s a n d t h e r e was no e v i d e n c e i n d i c a t i n g t h a t t h e m o t h e r 'had e v e r e x p o s e d t h e c h i l d r e n t o illegal d r u g use or a s s o c i a t e d a c t i v i t y or c o n v e r s a t i o n ' ) . " P.D., So. 3d Similarly, indicating that or he that unsupervised. at in . the the f a t h e r had could 4 present Thus, not for case, abused or properly the there no neglected care foregoing was for reasons, evidence the the we child child reverse I n t e r e s t i n g l y , t h e j u v e n i l e c o u r t f o u n d t h e c h i l d t o be dependent i n F e b r u a r y 2009, s e v e r a l months b e f o r e the f a t h e r ' s p a t e r n i t y o f t h e c h i l d was e s t a b l i s h e d , b a s e d s o l e l y o n t h e i n a b i l i t y of the mother to care f o r the c h i l d . The j u v e n i l e c o u r t n e v e r e x p r e s s l y f o u n d t h e c h i l d t o be d e p e n d e n t b a s e d o n 4 12 2091019 the judgment of the juvenile court father unsupervised daytime, a n d we consistent with i n s o f a r as i tdenied the v i s i t a t i o n every other Saturday during the remand this t h e case opinion. f o r further Specifically, j u v e n i l e c o u r t on remand t o c o n s i d e r to protect the c h i l d other proceedings we i n s t r u c t t h e less-restrictive than supervised visitation, measures such as r e q u i r i n g v i s i t a t i o n t o o c c u r o u t s i d e t h e p r e s e n c e o f A.H. a n d ordering until the father he o b t a i n s The father admitting a valid also father's the child unless that the juvenile court c e r t a i n evidence that he first evidentiary Thompson, contends the juvenile court's argument, we erred i n i s irrelevant. judgment b a s e d on t h e pretermit discussion of the argument. INSTRUCTIONS. P . J . , and Pittman, i n the result, and driver's license. R E V E R S E D AND REMANDED WITH concur with argues B e c a u s e we r e v e r s e father's not t o drive without Bryan, a n d Thomas, J J . , writings. any s h o r t c o m i n g s o f t h e f a t h e r . Because t h e f a t h e r does n o t a p p e a l o n t h a t g r o u n d , we d o n o t s p e c i f i c a l l y a d d r e s s t h a t i s s u e ; h o w e v e r , we d o n o t e t h a t , i n t h i s c a s e , we a r e n o t d e a l i n g w i t h a p e t i t i o n f o runsupervised v i s i t a t i o n f i l e d by a p a r e n t who h a s b e e n f o u n d t o b e u n a b l e t o p r o p e r l y c a r e f o r his or her child. 13
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