J.K. v. N.J.

23 So. 3d 57
CourtCourt of Civil Appeals of Alabama
DecidedMay 1, 2009
Docket2080199
StatusPublished
Cited by3 cases

This text of 23 So. 3d 57 (J.K. v. N.J.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.K. v. N.J., 23 So. 3d 57 (Ala. Ct. App. 2009).

Opinion

BRYAN, Judge.

J.K. (“the father”) appeals from a judgment of the Jefferson Juvenile Court ordering that, pursuant to § 15-20-26(c)(4), Ala.Code 1975, the father shall not reside with his children.1

[58]*58The facts in this case are undisputed. N.J. (“the mother”) and the father were in a relationship in February 2002, when the father pleaded guilty to first-degree rape of his nine-year-old niece. The mother and the father have two children, both girls, Ja.K. and Ji.K. (hereinafter collectively referred to as “the children”). At the time of the hearing in this matter, the children were ages four and two, respectively. The parties have resided together since Ja.K. was born, but they never married. The record shows that the father has at all times provided for the financial, physical, and emotional needs of the children. In October 2007, the Jefferson County Department of Human Resources (“DHR”) did a routine background check on the mother and the father after Ja.K. came to school with an injury to her left eye.

A representative from DHR went to the residence shared by the mother, the father, and the children to evaluate their home. The DHR representative later called the mother and informed her that, because of the father’s status as a criminal sex offender, DHR would be required to take custody of the children if the mother did not immediately remove the children from the residence they shared with the father. The mother fully complied with DHR’s request, and she and the children moved in with the maternal grandparents of the children.

DHR filed a dependency petition for each child, alleging that the children were dependent because they had shared a residence with a criminal sex offender convicted of committing an offense involving a child. After an initial hearing, on November 27, 2007, the juvenile court awarded custody of the children to the mother, and the father was ordered not to reside in the same residence with the children. After the dispositional hearing, on February 20, 2008, the court ordered that custody of the children remain with the mother, ordered the father to continue to keep his own residence, and awarded the father supervised visitation with the children. After another dispositional hearing, on September 2, 2008, the father was adjudged the legal father of the children as the result of genetic testing, and the court found the children dependent based on an admission of the parties. The court ordered that custody of the children remain with the mother, with the father having supervised visitation. On November 13, 2008, the court held a final custody hearing to determine the rights of the parties.

Tiffany Portis, a social worker with DHR, testified that DHR has two “indicated” child-abuse and neglect reports on the father: the first was dated January 21, 2000, and involved the father’s fondling a girl at his high school; the second, dated May 14, 2001, involved the incident from which the father pleaded guilty to first-degree rape of his nine-year-old niece.

Portis also testified that she had visited the children on a monthly basis from November 2007 to November 2008. She had observed the children interacting with the father and found that the children have a bond with the father. She testified that she had never observed any inappropriate conduct between the father and the children and that she had received no reports of inappropriate conduct involving the father and the children. She further testified that the father has been responsible for the physically demanding element of caring for the children because the mother has significant health problems, including congestive heart failure, for which she is waiting for a heart transplant.

Portis testified that she could not recommend that the father be allowed to reside in the home with the children because the law forbids him from residing in a res[59]*59idence with a minor because his rape victim was under the age of 12. She testified that she does not have any safety concerns with the father having supervised visitation but that she would have safety concerns if the father was awarded unsupervised visitation because he is a sex offender. She also testified that, but for the father’s status as a sex offender, she would have no safety concerns about the father’s residing with the children.

Christy Risher, and employee of the Jefferson County district attorney’s office, testified that in February 2002 the father pleaded guilty to first-degree rape of his nine-year-old niece. The father was sentenced to two years in prison and five years of probation following his release.

The mother testified that it is her desire for the father to live with her and the children. She also testified that the children miss the father, and she believed it was in the best interest of the children for the father to have unsupervised visitation with the children. The mother testified that, although she was aware that the father had pleaded guilty to raping his nine-year-old niece, she has never been concerned for the safety of her children when they are with the father. She testified that it did not concern her to know that the father was the uncle of his rape victim.

The mother further testified that because of her physical disabilities she depended on the physical and emotional support the father provided, and, she stated, because the father is not permitted to reside with the children, the mother has been dependent on her family members to meet the physical demands of raising children.

During his closing statements, the father’s counsel stated: “Judge, we feel that [the father] has a constitutional right to live with his family. We feel that the testimony presented no evidence of anything other than a prior conviction that would impinge on that right.” The juvenile-court judge asked the father’s counsel at the conclusion of his closing statement: “If [the father] lives with his children and exercises those constitutional rights, wouldn’t he violate criminal law in the State of Alabama?” The father’s counsel replied: “It’s my understanding he would be in violation of the criminal law in the State of Alabama ... [and] could be subject to an arrest and felony prosecution

The father’s counsel moved the juvenile court to award the father unsupervised visitation if the court would not allow the father to reside with the children. In his argument in support of the motion, the father’s counsel stated: “Judge, [the father] is in a situation where he cannot change the facts. He has to fight the law which we believe is an unconstitutional and unjust law.” These references to the constitutionality of § 15-20-26(c)(4) are the only argument the father presented to the juvenile court regarding the constitutionality of that statute.

In its final order, entered on November 18, 2008, the juvenile court found that custody of the children was to remain with the mother, and it awarded the father unsupervised visitation pursuant to this court’s decision in S.A.N. v. S.E.N., 995 So.2d 175 (AIa.Civ.App.2008). The juvenile court also ordered that, due to the proscription of § 15-20-26(c)(4), Ala.Code 1975, the father shall not reside with the children. The father timely appeals.2

[60]*60On appeal the father argues that § 15-20-26(c)(4), Ala.Code 1975, violates his substantive-due-process rights under the 14th Amendment of the United States Constitution because, he asserts it denies him his fundamental rights as a father.

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Jk v. Nj
23 So. 3d 57 (Court of Civil Appeals of Alabama, 2009)

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Bluebook (online)
23 So. 3d 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jk-v-nj-alacivapp-2009.