Summary
In V.G.J. v. Tuscaloosa County Department of Human Resources, 368 So.3d 886, 889 (Ala. Civ. App. 2022), this court applied § 15-1-3 in the context of a termination-of-parental-rights appeal.
Summary of this case from M.G.S. v. Lee Cnty. Dep't of Human Res.Opinion
2210176, 2210187 and 2210188
06-17-2022
V.G.J. v. TUSCALOOSA COUNTY DEPARTMENT OF HUMAN RESOURCES M.H.R. v. Tuscaloosa County Department of Human Resources
Christopher E. Allen, Tuscaloosa, for appellant V.G.J. J. Curry Robertson of Blume & Blume Attorneys at Law, P.C., Northport, for appellant M.H.R. Steve Marshall, att'y gen., and Felicia M. Brooks, chief legal counsel, and Faith Perdue Twiggs, asst. att'y gen., Department of Human Resources, for appellee.
Christopher E. Allen, Tuscaloosa, for appellant V.G.J.
J. Curry Robertson of Blume & Blume Attorneys at Law, P.C., Northport, for appellant M.H.R.
Steve Marshall, att'y gen., and Felicia M. Brooks, chief legal counsel, and Faith Perdue Twiggs, asst. att'y gen., Department of Human Resources, for appellee.
MOORE, Judge.
V.G.J. ("the father") appeals from a judgment entered by the Tuscaloosa Juvenile Court ("the juvenile court") terminating his parental rights to J.H.; M.H.R. ("the mother") appeals from that same judgment to the extent that it terminated her parental rights to J.H. The mother also appeals from a separate judgment entered by the juvenile court terminating her parental rights to A.R. We reverse the juvenile court's judgments.
Background
The mother and the father are citizens of Guatemala. The father primarily speaks Spanish, and the mother primarily speaks Quiché, a Mayan language. The mother gave birth to J.H. on December 7, 2011. A Guatemalan birth certificate identifies V.G.J. as the father of J.H. At some point, the mother and the father immigrated with J.H. to Tuscaloosa County and established a residence near several of the father's relatives. The father was later deported back to Guatemala, where he has remained ever since. After the father's deportation, the mother gave birth to A.R. on July 25, 2017. The paternity of A.R. has never been established.
Some statements made by counsel for the parties indicate that the mother and the father may have been married, but no evidence of their marital status was introduced at trial.
In April 2018, the Tuscaloosa County Department of Human Resources ("DHR") received a report that A.R. had received physical injuries suggesting the possibility of abuse or neglect. DHR opened an investigation and entered into a safety plan, pursuant to which the children were placed in the care of relatives. After DHR terminated the safety plan, the children were placed into foster care on May 14, 2018. DHR initiated visits between the mother and the children and scheduled parenting classes for her, but the mother was deported back to Guatemala in June 2018 before those classes commenced.
On April 18, 2019, DHR filed in the juvenile court a petition seeking to terminate the parental rights of the mother and the father to J.H.; that petition was assigned case number JU-18-220.03. On April 29, 2019, DHR filed in the juvenile court a separate petition seeking to terminate the parental rights of the mother to A.R.; that petition was assigned case number JU-18-221.02. DHR alleged in the petition filed in case number JU-18-221.02 that there was no legal father of A.R. DHR did not immediately serve the parents with the termination-of-parental-rights petitions, but the juvenile court appointed counsel for both the father and the mother and a guardian ad litem for the children.
On June 26, 2019, the mother filed in case number JU-18-221.02 a motion requesting the approval of extraordinary expenses to hire an interpreter; that motion was granted the same day. The juvenile court later granted another motion filed by the mother requesting an allowance for additional expenses for an interpreter.
Section 15-1-3(d), Ala. Code 1975, provides, in pertinent part:
"An interpreter appointed pursuant to this section shall be entitled to a fee in an amount calculated according to a fee schedule established by the Administrative Director of Courts with the advice and consent of the state Comptroller for his or her services."
On September 10, 2019, the father filed in case number JU-18-220.03 a motion requesting the appointment of an interpreter to assist the father's attorney in communicating with the father and in preparing the case for trial; the father also filed a motion for an award of extraordinary expenses to pay the interpreter. The juvenile-court judge summarily denied those motions the next day, without conducting a hearing, but indicated that he might consider appointing an interpreter if needed for trial.
DHR eventually served the parents by publication in a Guatemalan newspaper in August 2021, and the cases proceeded to trial on November 9, 2021. At the commencement of the trial, the father's appointed counsel orally moved for a continuance on the ground that he had not been able to communicate with the father and requested that the juvenile-court judge reconsider the ruling on the father's motion for an appointment of an interpreter. Those motions were denied.
The juvenile-court judge presiding over the trial was appointed in 2020 to replace the juvenile-court judge originally assigned to the cases.
On November 15, 2021, the juvenile court entered a judgment in case number JU-18-220.03, terminating the parental rights of the mother and the father to J.H. That same day, the juvenile court entered a separate judgment in case number JU-18-221.02, terminating the parental rights of the mother to A.R. The judgments determined that the children had been abandoned. The father filed his notice of appeal in case number JU-18-220.03 on November 23, 2021. The mother filed her notices of appeal in case numbers JU-18-220.03 and JU-18-221.02 on November 29, 2021. This court assigned case number 2210176 to the father's appeal and case numbers 2210187 and 2210188 to the mother's appeals. The appeals were consolidated for review and disposition by this court, ex mero motu. This court conducted oral argument on May 25, 2022.
The father did not appeal the judgment entered in case number JU-18-221.02, which did not terminate any parental rights he may have to A.R.
Issues on Appeal
The father argues that the juvenile court violated Ala. Code 1975, § 15-1-3, by failing to appoint an interpreter to allow the father to communicate with his appointed counsel and by denying his motion to continue the trial until an interpreter could be secured. The mother contends that the judgments terminating her parental rights are not supported by sufficient evidence.
Analysis
I. The Father's Appeal
Section 15-1-3(a)(1) provides, in pertinent part, that, "[i]f at any stage of a ... juvenile court proceeding ..., the defendant ... informs the court that he or she does not speak or adequately understand the English language, the court may appoint an interpreter." By its plain language, § 15-1-3(a)(1) provides that a juvenile court may appoint an interpreter for a defendant in a juvenile-court proceeding once the defendant "informs" the juvenile court that the defendant does not speak or adequately understand the English language. In this case, appointed counsel for the father filed a written motion in which counsel conveyed that "the father's native language is Spanish" and that the father "does not speak English." We conclude that the motion filed on behalf of the father sufficiently informed the juvenile court that the father did not speak English so as to comply with § 15-1-3(a)(1).
Section 15-1-3(a)(3) provides, in pertinent part:
"If the court determines that due process considerations require an interpreter, the court shall appoint a qualified person to interpret the proceedings for the defendant ... requesting assistance. The interpreter shall also interpret the testimony or statements of the defendant ... and, where applicable, assist in communications with counsel."
At a minimum, due process requires that the permanent severance of the relationship between a parent and his or her natural child through termination of parental rights can be achieved only through "fundamentally fair procedures." Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Alabama law guarantees that an indigent parent has a statutory right to effective assistance of counsel. See Crews v. Houston Cnty. Dep't of Pensions & Sec., 358 So. 2d 451, 455 (Ala. Civ. App. 1978). Because "a substantial language barrier may deprive an indigent party of the statutory right to effective assistance of counsel," State ex rel. A.C., 349 P.3d 751, 757 (Utah Ct. App. 2015), under § 15-1-3(a)(3) a juvenile court must ascertain whether the appointment of an interpreter is necessary to assure that an indigent parent in a termination-of-parental-rights proceeding can adequately communicate with his or her counsel in order to receive effective representation and a fair trial.
In the written motions filed on behalf of the father on September 10, 2019, the father's appointed counsel indicated that he "ha[d] obtained a telephone number for the father in Guatemala, but need[ed] an interpreter in order to communicate with the father and prepare the case." This information, when coupled with the statement that the father did not speak English, at least minimally conveyed to the juvenile court that, to facilitate communication between the father and his appointed counsel and to assure that the father received effective assistance of counsel in preparing his defense of the petition to terminate his parental rights to J.H., the juvenile court needed to appoint an interpreter.
On September 27, 2019, after the juvenile court had denied the motions to appoint an interpreter and to award the father extraordinary expenses to pay the interpreter, the father filed a motion to continue the trial of the case, which was at that time scheduled for October 1, 2019. In that motion, appointed counsel for the father indicated that the father contested the petition to terminate his parental rights and that "the language barrier between the father and the undersigned attorney ... has made it difficult to do all the things necessary to prepare this case for trial." The juvenile court did not appoint an interpreter at the time; however, it continued the case after DHR also filed a motion to continue on September 30, 2019, informing the juvenile court that the parents had not been served.
At the commencement of the trial in November 2021, appointed counsel for the father informed the juvenile court that he could not properly communicate with the father without an interpreter; that he had acquired a telephone number for the father from "an uncle"; that he had used that telephone number to contact the father; that he had arranged a meeting with the father through "WhatsApp," an Internet-based communication service, in August 2019; and that a bilingual staff member employed by the guardian ad litem had translated the conversation between himself and the father. Appointed counsel for the father indicated that he realized that it was "an odd thing" to use the guardian ad litem's staff member as an interpreter because of the guardian ad litem's "role in all this," and the record indicates that he had filed the written motion for the appointment of an interpreter after using the guardian ad litem's staff member as the interpreter. All of this information only reinforces that the father needed an independent interpreter to assist his appointed counsel in preparing his case.
Notably, DHR did not oppose the motion. DHR did not contend that the father could speak English or adequately understand English. Even if the juvenile court had some reason to believe that the father could speak English or adequately understand English, the juvenile court did not comply with § 15-1-3(a)(4), which provides, in pertinent part:
"If the court has reason to believe that the defendant ... requesting an interpreter is capable of speaking and understanding the English language, the court may require that the requestor provide reasonable proof to the court of his or her inability to speak or understand the English language."
Furthermore, DHR did not contend that due process did not require appointment of an interpreter for the father. At the commencement of the trial, the juvenile-court judge expressed the opinion that an interpreter would not be helpful because appointed counsel did not know where the father was and had no way to contact the father. However, appointed counsel replied that he had retained the contact telephone number for the father in Guatemala and that an interpreter could assist him with communicating with the father through the telephone or "WhatsApp." Thus, all the information provided to the juvenile court indicated that the appointment of an interpreter would not be a futile gesture but, rather, would be crucial to facilitating communication between the father and his appointed counsel for the purpose of preparing his defense.
The United States Court of Appeals for the Eleventh Circuit has held:
"As a constitutional matter, the appointment of an interpreter is within the trial court's discretion. Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989) ; see also Perovich v. United States, 205 U.S. 86, 91, 27 S. Ct. 456, 51 L.Ed. 722 (1907).... The basic inquiry is whether the failure to provide an interpreter made the trial fundamentally unfair. [United States v.] Edouard, 485 F.3d [1324,] 1337 [(11th Cir. 2007)] ; Valladares, 871 F.2d at 1566."
Jimenez v. Secretary, Florida Dep't of Corr., 450 F. App'x 826, 828 (11th Cir. 2012) ; see also United States v. Tapia, 631 F.2d 1207, 1210 (5th Cir. 1980) ("If the Court below determines, after a hearing, that [the] defendant ... was inhibited from such comprehension of the proceedings or the testimony given against him in English to such an extent as to have made the trial fundamentally unfair, [it] should grant him a new trial."). Consistent with that standard, this court has recognized that, when determining whether an indigent party has received effective assistance of appointed counsel in juvenile-court proceedings, "the test ... is whether an examination of the entire record demonstrates that the complaining party was afforded a fair trial." Crews v. Houston Cnty. Dep't of Pensions & Sec., 358 So. 2d at 455. In this case, we conclude that it was unfair to the father for his appointed counsel to be required to proceed to trial without having a meaningful opportunity to confer with the father through an interpreter in order to prepare an adequate defense to the petition to terminate the father's parental rights.
At the time of trial, appointed counsel for the father sought to avoid an unfair trial by orally requesting that the juvenile court continue the case and appoint an interpreter "so I can have a meaningful dialogue and preparation with him before the case is tried." Appointed counsel for the father admitted that, since September 2019, he had not again moved the court to appoint an interpreter, but DHR did not assert or present any evidence indicating that the requests for a continuance and for the appointment of an interpreter were merely dilatory tactics. DHR objected to the requested continuance solely on the ground that the continuance would delay the permanency of the children who had been in foster care for over three years at that time. Although it is certainly a valid concern, permanency for a dependent child cannot be achieved through the sacrifice of a parent's right to effective assistance of counsel in a termination-of-parental-rights proceeding. See A.S.H. v. State Dep't of Hum. Res., 991 So. 2d 755, 755 (Ala. Civ. App. 2008).
We note that the delay in setting the trial appears to have been directly related to DHR's failure to properly serve the parents with the petitions, which had been filed in April 2019, until August 2021.
A juvenile court exercises judicial discretion when ruling on a motion for a continuance, and its decision to deny a motion to continue may be reversed only upon a determination by the appellate court that the juvenile court abused its discretion. See C.O. v. Jefferson Cnty. Dep't of Hum. Res., 206 So. 3d 621, 630 (Ala. Civ. App. 2016). A court abuses its discretion when " ‘it has committed a clear or palpable error, without the correction of which manifest injustice will be done.’ " Clayton v. State, 244 Ala. 10, 12, 13 So. 2d 420, 422 (1942) (quoting 16 C.J. 453). We conclude that, based on the circumstances presented in the record, the juvenile court plainly erred in failing to continue the case until an interpreter could be appointed in a manner consistent with § 15-1-3.
For the foregoing reasons, we reverse the judgment of the juvenile court terminating the father's parental rights to J.H. and remand the case for the juvenile court to appoint a qualified interpreter for the father to assist with communications with his appointed counsel and, if necessary, to translate any testimony of the father or his witnesses at a new trial and to take such other action as is consistent with this opinion.
II. The Mother's Appeals
In the mother's appeals, she argues that the juvenile court did not have sufficient evidence of grounds for termination of her parental rights. A judgment terminating parental rights must be supported by clear and convincing evidence, which is " ‘ "[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion." ’ " C.O. v. Jefferson Cnty. Dep't of Hum. Res., 206 So. 3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1975, § 6-11-20(b)(4) ).
" ‘[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.’
" KGS Steel[, Inc. v. McInish,] 47 So. 3d [749,] 761 [(Ala. Civ. App. 2006)].
"... [F]or trial courts ruling ... in civil cases to which a clear-and-convincing-evidence
standard of proof applies, ‘the judge must view the evidence presented through the prism of the substantive evidentiary burden[,]’ [ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ]; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would ‘produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’ "
Ex parte McInish, 47 So. 3d 767, 778 (Ala. 2008). This court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing. See Ex parte T.V., 971 So. 2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id. We review the legal conclusions to be drawn from the evidence without a presumption of correctness. J.W. v. C.B., 68 So. 3d 878, 879 (Ala. Civ. App. 2011).
Section 12-15-319(a), Ala. Code 1975, provides, in pertinent part:
"If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parent[ ] of a child [is] unable or unwilling to discharge [his or her] responsibilities to and for the child, or that the conduct or condition of the parent[ ] renders [him or her] unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parent[ ]. In a hearing on a petition for termination of parental rights, the court shall consider the best interests of the child. In determining whether or not the parent[ ] [is] unable or unwilling to discharge [his or her] responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
"(1) That the parent[ ] ha[s] abandoned the child, provided that in these cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parent[ ].
"....
"(6) Unexplained serious physical injury to the child under those circumstances as would indicate that the injuries resulted from the intentional conduct or willful neglect of the parent."
In its petitions to terminate the mother's parental rights, DHR asserted that it had become involved with the children upon obtaining information that A.R. had received at least two unexplained physical injuries, which the lone social worker called by DHR as a witness described in her trial testimony as resulting in a subdural hemorrhage. DHR did not introduce any medical records into evidence. The social worker testified that, upon entering foster care in May 2018, A.R. had appeared to be developmentally delayed, but DHR did not call an expert witness to link that apparent delay to the injuries sustained by A.R., who, the social worker testified, was a normal, healthy child by the time of the trial. The social worker testified that DHR had opened an investigation to determine whether A.R. had been abused or neglected; that the mother had indicated through an interpreter that a babysitter might have caused the injuries; and that DHR ultimately was "unable to complete" the investigation because DHR could not determine who had committed the abuse, if any. DHR did not rule out the mother as a possible abuser, but DHR did not file a report indicating that the mother had abused A.R. In the judgments terminating the mother's parental rights, the juvenile court did not find that the injuries to A.R. had "resulted from the intentional conduct or willful neglect of [the mother]." § 12-15-319(a)(6).
The social worker testified that the mother did not identify the babysitter, but the social worker was unaware that the mother had provided the residence address for the babysitter, who was identified by name during questioning at trial.
The judgments rest the termination of the mother's parental rights exclusively on the factual finding made by the juvenile court that the mother had abandoned the children. Section 12-15-301(1), Ala. Code 1975, defines "abandonment" as
"[a] voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his or her presence, care, love, protection, maintenance, or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent."
Therefore, this court must determine whether the juvenile court could have been clearly convinced that the mother had abandoned the children.
The evidence relating to abandonment, sparse as it is, consists of the testimony of one DHR social worker who was assigned to the family's case in September 2019. The social worker testified that the mother wanted to retain custody of the children; that she had attended the court hearings in the children's dependency cases; that she had participated in several meetings with DHR to develop an individualized service plan ("ISP") to reunite the mother with the children; and that she was cooperating with DHR. After the children were placed into foster care on May 14, 2018, the mother complied with the ISP by visiting twice with the children under DHR's supervision and scheduling parenting classes; however, in June 2018, the mother was deported, involuntarily returning to Guatemala. The social worker testified that the mother had not contacted DHR since her deportation. DHR attempted to locate the mother through a Guatemalan consulate, but the consulate did not provide any contact information for the mother.
At some point, the foster parents took the children to a family gathering involving the children's extended family, during which J.H.’s paternal relatives provided the foster parents information to contact the mother and the father through "WhatsApp." The foster mother informed the social worker that the children had videoconferenced with the mother at least once a week since that time. The social worker testified that DHR had never attempted to obtain the mother's "WhatsApp" profile or to communicate with the mother through that service. At the time of the trial, the mother had not provided any support or maintenance for the children, but the record contains no evidence indicating that the juvenile court had ordered the mother to pay child support. The mother was served by publication and did not appear at trial.
In J.B. v. DeKalb County Department of Human Resources, 12 So. 3d 100 (Ala. Civ. App. 2008) (authored by Moore, J., with Pittman, J., concurring, Thompson, P.J., concurring in the result, and Bryan and Thomas, JJ., dissenting), this court reversed a judgment terminating the parental rights of J.B., a Guatemalan immigrant, based on an erroneous finding of abandonment. This court determined that "if [J.B.] was, in fact, unintentionally, involuntarily, or justifiably prevented from interacting with the children as a parent, then his conduct [could not] be considered abandonment." 12 So. 3d at 111. In this case, the record shows that the mother was prevented from interacting with the children solely because she was involuntarily separated from the children as a result of her deportation.
In B.V. v. Department of Children & Families, 328 So. 3d 48 (Fla. Dist. Ct. App. 2021), the Florida District Court of Appeal held that the incarceration of a parent alone will not support a finding of abandonment but that the conduct of the parent before and after incarceration should be considered. The court also held in B.V. that the same reasoning should apply in deportation cases and that, in those cases, abandonment can be found only if the conduct of the parent before and after deportation independently supports a finding of abandonment. Alabama law mirrors that of Florida in regard to cases of parental imprisonment. See C.F. v. State Dep't of Hum. Res., 218 So. 3d 1246, 1250 (Ala. Civ. App. 2016). We, therefore, find the holding in B.V. to be persuasive, and we adopt the following rule for application in this state: Deportation alone does not equate to abandonment; however, a juvenile court can consider the voluntary conduct of the parent toward the child before and after deportation as evidencing abandonment of the child. See C.F., 218 So. 3d at 1250.
In the present cases, before she was deported, the mother had displayed a commitment to the children by maintaining her right to their custody, by participating in ISP meetings to develop a plan to reunite her with the children, by consistently visiting with them in accordance with the ISP, and by cooperating with DHR. After the mother was deported, the mother consistently communicated with the children through "WhatsApp." DHR did not present any evidence indicating that the mother had voluntarily elected not to return to the United States and reunite with the children, and the record is devoid of any evidence indicating that the mother is intentionally remaining in Guatemala of her own accord. Based on the evidence of the mother's voluntary conduct before her deportation, as well as her efforts to maintain communication with the children despite her deportation, the juvenile court could not have been clearly convinced that the mother had abandoned the children. Accordingly, we reverse the judgments terminating the parental rights of the mother.
Conclusion
Based on the foregoing, we reverse the judgment entered by the juvenile court in case number JU-18-220.03 terminating the parental rights of the father and the mother to J.H. We also reverse the judgment entered by the juvenile court in case number JU-18-221.02 terminating the parental rights of the mother to A.R. The cases are remanded for further proceedings consistent with this opinion.
2210176 — REVERSED AND REMANDED.
2210187 — REVERSED AND REMANDED.
2210188 — REVERSED AND REMANDED.
Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.