J.W. v. Cullman Cnty. Dep't of Human Res. (Ex parte J.W.)

300 So.3d 578 (Mem)

EX PARTE J.W. and R.L.

(In re: J.W. and R.L.

v.Cullman County Department of Human Resources)

Ex parte J.W. and R.L.

(In re: J.W. and R.L.

v.Cullman County Department of Human Resources)

1180339

1180340

Supreme Court of Alabama.

January 31, 2020

Thomas E. Drake II of The Drake Law Firm, Cullman, for petitioners.

Steve Marshall, atty. gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for respondent.

PER CURIAM.

1180339 –- WRIT QUASHED. NO OPINION.

1180340 –- WRIT QUASHED. NO OPINION.

Parker, C.J., and Bryan, Sellers, Mendheim, and Mitchell, JJ., concur.

Shaw, J., concurs specially.

Bolin, Wise, and Stewart, JJ., dissent.

SHAW, Justice (concurring specially).

I originally dissented to granting these petitions for certiorari review because they did not sufficiently allege grounds under Rule 39(a)(1), Ala. R. App. P. Additionally, they failed to address the two cases cited by the Court of Civil Appeals in its order affirming, without an opinion, the trial court's orders, indicating that the petitioners' claims were not preserved for review or lacked merit.¹ Thus, I saw no probability of merit in the petitions. See Rule 39(f) ("If the Supreme Court, upon preliminary consideration, concludes that there is a probability of merit in the petition and that the writ should issue, the Court shall so order ...."). I thus concur to quash the writs of certiorari. In doing so, I express no approval of the trial court's actions in these cases.

BOLIN, Justice (dissenting).

I dissent from the orders quashing the writs of certiorari because I believe the juvenile court's order terminating J.W.'s and R.L.'s parental rights violated their rights to present their case and to confront witnesses.

Facts and Procedural History

On March 16, 2018, the Cullman County Department of Human Resources ("DHR") filed petitions to terminate the parental rights of J.W. and R.L. (hereinafter referred to collectively as "the parents") to their two children. The juvenile court notified the parents of a preliminary hearing on May 17, 2018, at 9:30 a.m. The juvenile court set the termination-of-parental-rights hearing for August 15, 2018, at 8:30 a.m.

On August 15, 2018, the following exchange occurred at the hearing:

"THE COURT: Let the record reflect that the parties were notified that this matter was set for 8:30 this day on August 15, 2018. It is now 8:43 a.m., neither the parents nor their attorney have presented themselves in court today. The State is prepared to go forward. And, Ms. Watts, as the guardian ad litem, are you prepared to go forward?

"MS. WATTS: Yes, Your Honor.

"THE COURT: And just for the record, this matter has been set for over two or three months I believe. And I will let the record reflect, and to take judicial notice, that the parties were -– or the parents and their attorney were in court yesterday on a district civil case for an unlawful detainer. As part of that agreement that was reached between the parties in that case, the parents have agreed to vacate their premises within 14 days. They have not paid rent in several months. So to the best of the Court's knowledge the parents will be homeless within 14 days because they have not -- as the Court was informed yesterday, they do not have housing at this time. I think that's all we need to take judicial notice of. But the parents, again, were aware of the court that was scheduled this morning at 8:30 and we are now 15 minutes past the time, so we will go forward.

"MR. BAGGETT [COUNSEL FOR DHR]: Thank you, Judge. I will ask you to also take judicial notice that the mother was served with the petitions on May 14, 2018, and the father was served on May 16, 2018, so we are within the 90 days after the service of the last parent.

"THE COURT: It is noted.

"MR. BAGGETT: Your Honor, the State calls Ashley Campbell.

"....

"MR. DRAKE [COUNSEL FOR THE PARENTS]: Judge, let me interpose an objection. As I understand it, you say you've already started.

"THE COURT: The Court was scheduled at 8:30. We started at 8:45.

"MR. DRAKE: I checked with my clerk and he said it started at 9:00. I got him to check twice.

"THE COURT: The order that was entered on June -– I'll tell you here in just a second. I believe it was June 8, the case shall be set for TPR [termination-of-parental-rights] trial on August 15, 2018, and August 16, 2018, at 8:30 a.m.

"MR. DRAKE: Yeah. I would like to take a five-minute break and see what he's referencing. Because I got him to check it twice and there had to be something online to where he told me yesterday and today that it was at 9:00. I would like to take a recess in order to see what document is in the court record.

"THE COURT: The court date -- I can show you right here. On the AlaCourt system, there [are] two court dates. Number one, 6/7/2018, the time was 9:30 a.m. for a status conference. And number two listed is 8/15/2018 is 8:30 a.m., and that's the TPR trial.

"MR. DRAKE: No. I don't doubt what the Court is looking at, I'm just saying I need to find out what he was looking at. Because if there's something that's different than that -- I mean, the information I gave my client was to be here based on those representations of my clerk. And I need to see what he's looking at. Because if there is some record that he's reviewing that says to be here at 9:00, then it would--

"THE COURT: I am going to continue to go forward. You are welcome to step out and contact your clerk. But I don't know of anything under the AlaCourt system or any--I'm looking at it, I don't see anything on the official court record that wouldn't say anything for 9:00. It's been--I've been on the bench going on eight years now. And since I started doing juvenile dependency when we start the TPR trials, for the last six years at least, it's been--they've always been set at 8:30.

"MR. DRAKE: Yes, sir. I'll just step out if I can.

"THE COURT: Yes, sir.

"MR. DRAKE: Is the Court denying a request for a five-minute recess?

"THE COURT: I am, because it was scheduled at 8:30. We waited until 8:45.

"MR. DRAKE: Yes, sir.

"....

"MR. BAGGETT: Yes sir. Your Honor, I also have some self-proving records as they are records of--

"MR. DRAKE: You've got to speak up. I can't hear you. I'm sorry.

"MR. BAGGETT: Sorry. [Mr. Drake,] come on up. I have some self-proving records here, records of convictions and fees that are owed on [R.L.] for his theft third conviction. He entered that plea on March 23, 2018. [J.W.]'s theft fourth conviction was on March 12, 2018.

"MR. DRAKE: Judge, could I see any records that have been admitted so far?

"THE COURT: Sure. It's child support on both parents.

"MR. DRAKE: I would like to interpose an objection to these records, Your Honor, that there's improper predicate and foundation that's failed to be laid on these records that –- even though it appears that some of these records are certified, we would object that the -– my clients have a right to confront the witnesses, confront the custodians of these records, cross-examine the custodian of these records. And it's a violation of the confrontation clause of the United States Constitution and the confrontation clause of the Alabama Constitution. Also, these items--that would be the basis of our objection. And also, it violated the attesting witness rule.

"THE COURT: Your objection is noted and it's overruled. The exhibit will be admitted.

"MR. DRAKE: I believe this is Exhibit 1, Your Honor?

"THE COURT: Correct. That's the child support records on both parents.

"MR. DRAKE: Yes, sir.

"MR. BAGGETT: All right, Your Honor, Exhibit 2 is the criminal convictions for R.L. for the theft of property, third, and R.L. for four counts of negotiating a worthless instrument. Those pleas were entered on July 25, 2018 -- I'm sorry, on April 3, 2018. And J.W.'s plea agreement, as well as the amount that they are behind on their payments, on her theft fourth charge. And these are all certified records as well and self-proving.

"(State's Exhibit Number 2 was marked for identification.)

"MR. DRAKE: I don't have an objection, your Honor, on the records. But I object to the extrajudicial statements made by counsel for [DHR] concerning what these items show or what these items depict or what is stated in these records.

"MR. BAGGETT: Your Honor, I would--

"MR. DRAKE: I move to strike it.

"MR. BAGGETT: I'll withdraw my statements regarding what they show. I believe they are self-explanatory.

"THE COURT: They will be admitted with the comments stricken from the record.

"(State's Exhibit Number 2 was admitted into evidence.)

"Q. (By MR. BAGGETT): All right. Mrs. Campbell [DHR social worker], will you take a look at what I've just handed you that has been marked State's Exhibit 3?

"(State's Exhibit Number 3 was marked for identification.)

"A. ISPs [individualized service plans].

"Q. How many ISPs are there?

"A. Twelve.

"Q. Okay. And do these ISPs represent the records of the ISP meetings which were held while the case was opened?

"A. Yes.

"Q. And are they in the normal format that you use to record what happens in these meetings?

"A. They are.

"Q. And is that part of your normal record keeping process at the Department of Human Resources?

"A. It is.

"Q. Okay. And do those, to the best of your knowledge, truly and accurately represent what occurred and what was stated in the mutual agreements at those meetings?

"A. Yes.

"MR. BAGGETT: Your Honor, the State moves to admit what has been collectively numbered as State's Exhibit 3 which is ISPs held in the case.

"MR. DRAKE: I object, Your Honor. All these records are hearsay. The other thing, I object to the characterization that these items represent the agreements in some way. I have never attended an ISP--very few where there was an agreement. ISPs are generally--ISPs are sham proceedings. The Individualized Service Plans, it's been my experience, have been compiled and drafted and done before the ISP meeting by either the caseworker of someone in the Department of Human Resources.

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