Opinion
1210041 and 1210042.
12-30-2021
EX PARTE M.C.A. (In re: M.C.A. v. Etowah County Department of Human Resources). Ex parte M.C.A. (In re: M.C.A. v. Etowah County Department of Human Resources).
Stewart E. Burns of Burns Garner Law Firm, Gadsden, for petitioner. Submitted on certiorari petition only.
Stewart E. Burns of Burns Garner Law Firm, Gadsden, for petitioner.
Submitted on certiorari petition only.
BOLIN, Justice.
1210041 — WRIT DENIED. NO OPINION.
1210042 — WRIT DENIED. NO OPINION.
Shaw, Bryan, Sellers, Mendheim, and Mitchell, JJ., concur.
Parker, C.J., and Wise and Stewart, JJ., dissent.
PARKER, Chief Justice (dissenting).
The Etowah Juvenile Court adjudicated the biological children of M.C.A. ("the father") dependent and ordered that the Etowah County Department of Human Resources ("DHR") take temporary custody of them. The Court of Civil Appeals affirmed, and the father petitions this Court for certiorari review. I dissent from this Court's decision to deny review.
The father and O.P. ("the mother") were married in 2015 and had two children together ("the children"). The mother had a minor daughter ("the stepdaughter") from a previous relationship, who also lived with the mother and the father. In January 2020, the mother and the father were divorced in the Calhoun Circuit Court. In the divorce judgment, the circuit court granted the father and the mother joint custody of their two children. The judgment left the physical placement of the two children up to the father and the mother, but it provided that, if they were unable to agree, then the father would have a right of visitation. Following the divorce, the parties continued to live in the father's home until about June 2020, when they separated.
At some point, apparently around the time of separation, the mother became aware of allegations by the stepdaughter that the father had engaged in sexually suggestive, abusive behavior toward her. In July 2020, the mother filed a petition for protection from abuse in the Calhoun Circuit Court against the father. DHR also became involved; in July 2020, the father, the mother, and DHR entered into a safety-plan agreement that stated that the mother would be responsible for protecting the two children from abuse, pending further investigation by DHR.
The father states that the circuit court held a hearing on the mother's petition and, "on the same day[,] dismissed the ex parte order." I understand this to mean that the circuit court ultimately denied the relief sought by the mother in that proceeding.
That plan continued in effect until, on January 6, 2021, the father notified DHR that he was revoking his agreement to the safety plan and was seeking permission from the Calhoun Circuit Court to resume his visitation with the two children. DHR was informed, through its attorney and a caseworker, that the circuit court had orally ordered that the father's visitation would resume on January 15. In anticipation of that resumption, on January 13, DHR filed a dependency petition against the father in the Etowah Juvenile Court. DHR did not allege or present evidence that the mother had committed any misconduct against the children or that she had failed to perform her parental duties; DHR was concerned only about the father having unsupervised visitation with the parties' two children, given his alleged misconduct toward the stepdaughter. M.C.A. v. Etowah Cnty. Dep't of Hum. Res., 357 So.3d 656, ___ (Ala. Civ. App. 2021) (Hanson, J., dissenting). In fact, DHR would have been comfortable with the father having visitation, if supervised by the mother. Id. at ___. Nevertheless, the juvenile court ruled that the children were dependent and granted custody to DHR. It appears that the juvenile court authorized DHR to continue placing the children with the mother.
In his certiorari petitions, the father argues that the Court of Civil Appeals' affirmance of the juvenile court's ruling conflicts with E.D. v. Lee County Department of Human Resources, 266 So.3d 740 (Ala. Civ. App. 2018). In E.D., two unmarried parents had joint custody of their son. After the father engaged in abusive and untoward behaviors toward the child, the mother sought modification of the custody arrangement. The mother also obtained a protection-from-abuse order, which gave her sole temporary custody and banned the father from visiting. Additionally, a county department of human resources commenced a dependency action, alleging that the child was dependent as to the father. Id. at 741-42. After a hearing in the dependency action, the juvenile court adjudicated the child dependent as to the father and awarded sole legal and physical custody of the child to the mother. Id. at 742. On appeal, the Court of Civil Appeals reversed the dependency adjudication, reasoning as follows:
"[T]he parents exercised joint custody of the child. In other words, both parents were custodial parents. [The county department of human resources] alleged and offered testimony intended to demonstrate that the child was dependent as to the father, but it did not allege or offer testimony intended to demonstrate that the child was dependent as to the mother. In fact, [the county department of human resources'] witnesses testified that the child was well taken care of by the mother, and the record demonstrates that she had acted to protect the child's health and safety by seeking a [protection-from-abuse] order in the [protection-from-abuse] action and a custody modification in the child-support action.... [T]he child in this case has a fit and willing custodial parent .... There is no evidence demonstrating that the child's care or supervision is inadequate. The mother, a person legally obligated to care for and to supervise the child, has the authority to take appropriate actions on behalf of the child, and she has done so."
Id. at 744 (emphasis added). Thus, the court held that, "because the child has a custodial parent able to properly care for and supervise him, the child is not a dependent child." Id. at 746 (emphasis omitted). In so holding, the court cautioned that "[t]his opinion should not be read as holding that a child with joint custodians, only one of whom has been allegedly harming the child, can never be declared dependent." Id. Rather, "[i]f an otherwise fit joint custodian fails to adequately protect a child from the harm of another joint custodian, the child may be adjudicated dependent." Id.
Similarly, in this case, according to the facts currently before us, DHR never alleged or demonstrated that the mother ever failed in her responsibilities toward the children. Like in E.D., the mother appropriately cared for the children and took legal action to protect them from potential abuse. Moreover, apparently DHR was authorized to continue placing the children with the mother after the dependency adjudication.
The only difference between this case and E.D. is that, in E.D., the trial court in the separate case granted that mother a protection-from-abuse order and banned the father from visiting, whereas here the Calhoun Circuit Court ultimately upheld the father's unsupervised visitation. But the fact that the circuit court saw fit to allow the father's visitation does not distinguish the present case from E.D., because the circuit court's decision was not evidence that the mother in any way failed to care for and protect the two children. Quite the opposite: The mother's opposition to the father's resumption of visitation was, if anything, evidence that she was seeking to protect the children. Thus, in my opinion, the father has established a conflict with E.D., and I would grant certiorari review.