Opinion
2120004.
04-12-2013
S.L.M. and R.S.M. v. S.C.
Christopher R. Garner of Burns, Burns & Garner, Gadsden, for appellants. Jane V. Floyd of Floyd Law Firm, LLC, Gadsden, for appellee.
Christopher R. Garner of Burns, Burns & Garner, Gadsden, for appellants.
Jane V. Floyd of Floyd Law Firm, LLC, Gadsden, for appellee.
Opinion
DONALDSON, Judge.
S.L.M. and R.S.M. appeal the order of the Juvenile Court of Etowah County (“the trial court”) transferring custody of S.D.A. and R.D.A. (“the children”) to their maternal grandmother, S.C. (“the maternal grandmother”). On appeal, S.L.M. and R.S.M. argue that the trial court erred in finding the children to be dependent in their care, that the maternal grandmother failed to present sufficient evidence to meet the standard to justify a change of custody set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and that the trial court was without jurisdiction to modify prior orders placing the children in the custody of S.L.M. and R.S.M.
C.G. is the mother of the children. C.G. (“the mother”) gave birth to one other child before giving birth to the children at issue in this matter, and that child is in the custody of the maternal grandmother at her home in Waco, Kentucky. The mother has an extensive history of substance abuse, arrests, homelessness, prostitution, and incarceration. Testimony indicates that the mother tested positive for illegal drugs when she delivered each of her three children. The mother's former husband and the legally presumptive father of the children as a result of their marriage is deceased, and the whereabouts of the alleged biological father of the children have been unknown throughout these proceedings. S.L.M. and R.S.M. are a married couple, but neither S.L.M. nor R.S.M. are blood relatives of the children. S.L.M. testified that, when she and the mother were young, her mother and the mother's father briefly dated and that she and the mother have always considered each other “sisters.” S.L.M. assisted the mother occasionally over the years, and when the mother gave birth to S.D.A. in December 2010, S.L.M. agreed to accept custody of S.D.A. under a 90–day safety plan developed by the Etowah County Department of Human Resources (“DHR”). On March 15, 2011, S.L.M. filed a dependency petition as to S.D.A., and the trial court awarded S.L.M. “temporary legal custody” to S.D.A. on May 10, 2011; however, in its May 10 order, the trial court made no findings of fact or determination as to whether S.D.A. was a dependent child, and the order did not provide for any future proceedings regarding a determination of dependency as to S.D.A. or a final disposition of custody of S.D.A.
On October 11, 2011, the mother gave birth to R.D.A. On November 8, 2011, S.L.M. filed a dependency petition seeking temporary custody of R.D.A., and, that same day, the trial court adjudicated R.D.A. to be dependent and proceeded to conduct a dispositional hearing. The trial court awarded S.L.M. and R.S.M. custody of R.D.A., stating that “the case may be set for hearing upon petition of the mother.”
On May 30, 2012, the maternal grandmother filed a “Petition to Intervene and For Custody” in the action relating to each child. The petitions specifically allege that the children are dependent as to the mother and the biological father and acknowledged that the children might be in the temporary custody of S.L.M.; however, the petitions do not specifically allege that the children are dependent while in S.L.M.'s custody. The trial court held a hearing on the petitions and heard testimony ore tenus from all parties. No party objected to the proceedings, which were in the nature of a hearing as to the dependency of the children, not a custody-modification hearing. The trial court entered an order in both actions on August 21, 2012, finding:
“Upon consideration of the pleadings and proof ore tenus, it appears to the Court that the children were placed with [S.L.M. and R.S.M.] through a Safety Plan by the Department of Human Resources. The custody arrangement was made based on the fact that the mother informed DHR that [S.L.M.] was her sister and [S.L.M.] did nothing to refute that information. The mother and [S.L.M.] are not related. Custody was apparently determined based on that
misinformation.
“The [maternal grandmother] testified that she had tried, unsuccessfully, to find the location of the children and when that information was finally ascertained, she filed this petition for custody. The mother of the children and [S.L.M.] knew the location of the [maternal] grandmother, but did not attempt to inform her of the circumstances regarding the children.”The trial court awarded custody of the children to the maternal grandmother, ordering supervised visitation with the mother and encouraging, but not ordering, visitation with S.L.M. and R.S.M. S.L.M. and R.S.M. moved the trial court to alter, amend, or vacate its order and moved for a new trial, and both motions were denied by operation of law. This timely appeal followed.
During the pendency of this appeal, S.L.M. and R.S.M. moved the trial court to supplement the record on appeal, primarily seeking to include the petitions previously filed and the orders previously entered in the underlying actions below. The maternal grandmother opposed that motion in the trial court, but the trial court granted the motion. The maternal grandmother has moved to strike the supplemental materials. However, the maternal grandmother's brief cites to the supplemented record on multiple occasions, without any indication that she objected to the inclusion of the supplemental materials. Further, if the supplemented record were not before us, this court would have acted on its own initiative to supplement the record because the supplemental materials are clearly relevant to the matters at issue. See Rule 10(f), Ala. R.App. P. (“The appellate court may, on the motion of a party or on its own initiative, order that a supplemental or corrected record be certified and transmitted to the appellate court if necessary to correct an omission or misstatement....”). The prior petitions and the prior orders of the trial court are directly at issue in this matter and are properly before us.
FN‘ The requirement that a finding of dependency must be supported by clear and convincing evidence before the dispositional phase of a dependency proceeding is now codified at § 12–15–311(a), Ala.Code 1975.”
“ ‘Our standard of review of dependency determinations is well settled.
“ ‘ “A finding of dependency must be supported by clear and convincing evidence. § 12–15–65(f)[, Ala.Code 1975] ; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court's ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep't of Human Res., 716 So.2d 219 (Ala.Civ.App.1998) ; G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App.1997) ; and J.M. v. State Dep't of Human Res., 686 So.2d 1253 (Ala.Civ.App.1996).”
Section 12–15–102(8), Ala.Code 1975, provides:
“Dependent child. a. A child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:
“1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in subdivision (2) of Section 12–15–301 or neglect as defined in subdivision (4) of Section 12–15–301, or allows the child to be so subjected.
“2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
“3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.
“4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state.
“5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 12–15–301.
“6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.
“7. Who has been placed for care or adoption in violation of the law.
“8. Who, for any other cause, is in need of the care and protection of the state.
“b. The commission of one or more status offenses as defined in subdivision (4) of Section 12–15–201 is not a sufficient basis for an adjudication of dependency.”
“ ‘J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004)....’
“_______________
J.L. v. W.E., 64 So.3d 631, 634 (Ala.Civ.App.2010) (quoting L.A.C. v. T.S.C., 8 So.3d 322, 326–27 (Ala.Civ.App.2008) ).
“ ‘[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 [as clear and convincing is defined by § 25–5–81(c) ] establish the fact sought to be proved.’
“KGS Steel [,Inc. v. McInish ], 47 So.3d [749,] 761 [ (Ala.Civ.App.2006) ].
“... ‘[T]he judge must view the evidence presented through the prism of the substantive evidentiary burden’; 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.’ § 25–5–81(c).
“In reviewing a decision of the trial court, an appellate court is not permitted
to reweigh the evidence, because weighing the evidence is solely a function of the trier of fact. However, it is the function of the appellate court to ascertain that the trial court's findings of fact are supported by substantial evidence with due regard to, and respect for, the appropriate level of evidentiary proof required, which in this case is clear and convincing.”
Ex parte McInish, 47 So.3d 767, 778 (Ala.2008). See also § 12–15–310(b), Ala.Code 1975 (“If the juvenile court finds that the allegations in the petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition.”).
Ex parte McInish was a workers' compensation case. The statute defining “clear and convincing evidence” referred to in Ex parte McInish —§ 25–5–81(c), Ala.Code 1975—is part of the Workers' Compensation Act. The statute defining “clear and convincing evidence” that is generally cited outside the workers' compensation context—§ 6–11–20(b)(4), Ala.Code 1975—is substantially identical to § 25–5–81(c).
On appeal, S.L.M. and R.S.M. first argue that they are fit and proper legal custodians as to both children, and therefore, they assert, the children are not dependent children as defined in § 12–15–102(8), Ala.Code 1975.3 Specifically, S.L.M. and R.S.M. argue that the maternal grandmother must show that the children are dependent while in their custody, rather than as a result of the existing finding of dependency as to the mother, to warrant a change of custody. S.L.M. and R.S.M. next argue that the maternal grandmother failed to present sufficient evidence to meet the McLendon standard to warrant a change of custody. Specifically, S.L.M. and R.S.M. argue that the May 2011 and November 2011 orders as to S.D.A. and R.D.A., respectively, were final orders, as opposed to pendente lite orders, and that, therefore, the maternal grandmother must meet the McLendon standard in order to justify a change in custody. Third, S.L.M. and R.S.M. argue that the sufficiency of the prior custody orders was not properly before the trial court and that, therefore, the trial court was without authority to modify the prior orders absent evidence warranting a change of custody. Specifically, S.L.M. and R.S.M. argue that the prior custody orders could properly be attacked only by a motion under Rule 60(b), Ala. R. Civ. P., and that, because the maternal grandmother was not a party to the actions at the time the prior custody orders were entered, she lacked standing to bring such a motion.
As a threshold matter, we first note that none of the parties address the issue whether the children are dependent as to the mother or the alleged biological father. Further, although S.L.M. and R.S.M. argue that the maternal grandmother bore the burden at trial of proving that the children were dependent while in their custody, S.L.M. and R.S.M. made no objection at trial to the matter proceeding as either a dependency action or any other form of action.
In the original “custody order” entered in S.D.A.'s case on May 10, 2011, the trial court did not explicitly make a finding of dependency, despite the fact that the case originated from a dependency petition, but, nevertheless, it awarded “temporary legal care, custody, and control” of S.D.A. to S.L.M. Although the trial court's May 2011 “custody order” did not explicitly contain a finding of dependency as to S.D.A., such a finding was implicit based on the nature of the proceedings:
“ ‘[T]his court has held that when the evidence in the record supports a finding of dependency and when the trial court has made a disposition consistent with a finding of dependency, in the interest of judicial economy this court may hold that a finding of dependency is implicit in the trial court's judgment.’ J.P. v. S.S., 989 So.2d 591, 598 (Ala.Civ.App.2008).”
M.W.H. v. R.W., 100 So.3d 603, 607 (Ala.Civ.App.2012).
The trial court's August 2012 order finding that “the children were placed with [S.L.M. and R.S.M.] through a Safety Plan by the Department of Human Resources” is not accurate based on the supplemented record. The record does not indicate that S.D.A. has previously been explicitly adjudicated to be dependent, and the trial court's May 2011 temporary-custody order gave custody to S.L.M. only, failing to mention R.S.M. R.D.A. has previously been explicitly adjudicated dependent by the November 2011 order, and her custody was transferred to S.L.M. and R.S.M. The transcript from the hearing on the maternal grandmother's petitions raises questions as to whether the trial court had the records of the prior proceedings before it at the time of the hearing below or when it entered the August 2012 order, as evidenced by a telephone call made from the bench during the hearing inquiring after those records. Also, the trial court's finding that “the mother informed DHR that [S.L.M.] was her sister and [S.L.M.] did nothing to refute that information” is contradicted by the April 22, 2011, DHR court report contained in the supplemented record. In the “Summary/Recommendations” section of that court report, DHR notes that “[the mother's] oldest daughter is in the custody of her mother, [the maternal grandmother,] and her second child [S.D.A. is] in a safety plan with her ex-step sister, [S.L.M.].” Thus, the DHR report in the supplemented record shows that DHR was aware that the mother and S.L.M. are not sisters and that DHR was aware of the existence of the maternal grandmother and knew that she had custody of the mother's oldest child. The record does not reflect any efforts by DHR to contact the maternal grandmother or to consider her or any other relative as a custodian of the children, presumably due to the desire of the mother to have S.L.M. designated as the children's custodian.
The trial court's August 2012 order does not indicate what standard it applied in awarding custody to the maternal grandmother. Specifically, the trial court's order does not make the findings required by Rule 25(A), Ala. R. Juv. P., which provides, in pertinent part:
“If the allegations of the juvenile petition are denied, the juvenile court shall direct that testimony of witnesses be taken. A dependency hearing shall be conducted consistent with legal and due-process requirements and shall proceed generally in a manner similar to the trial of a civil action before the court sitting without a jury.... At the close of the hearing, the juvenile court shall make one of the following findings in writing:
“(1) That the facts alleged in the juvenile petition are true and the child is dependent, in need of supervision, or delinquent; or
“(2) That the facts alleged in the petition are not proved or that the child is not in need of care or rehabilitation or supervision, in which event the juvenile petition shall be dismissed.”
As a threshold matter, the trial court's August 2012 order does not make the required finding as to whether the children were dependent as of the time of the hearing rather than when the trial court made its initial determinations in the actions into which the maternal grandmother petitioned to intervene, and, moreover, the order fails to identify the specific grounds to support a finding of dependency pursuant to § 12–15–102(8).
Because there had been an explicit prior determination that R.D.A. was dependent and an implicit determination of dependency as to S.D.A., the trial court was required to determine, by clear and convincing evidence, whether, as of the time of the hearing, the children were dependent while in the custody of their respective custodians—i.e., S.L.M. for S.D.A. and S.L.M. and R.S.M. for R.D.A. A finding of dependency must be made separately as to each child before the trial court may determine whether the maternal grandmother should have custody. The trial court's August 2012 order is not sufficient to infer that such determinations of dependency have been made. Therefore, we remand this cause to the trial court for it to make, based on the existing record, the written findings required by Rule 25(A), Ala. R. Juv. P., as to whether each child is dependent as to her custodian or custodians and, if so, identifying the grounds supporting the findings of dependency. If the trial court finds that the child was not dependent as to her custodian or custodians, the petition should be dismissed as to that child. The trial court shall make due return to this court within 42 days of the release of this opinion.
REMANDED WITH INSTRUCTIONS.
THOMPSON, P.J., and PITTMAN, J., concur in the result, without writings.
THOMAS, J., dissents, with writing, which MOORE, J., joins.
THOMAS, Judge, dissenting.
I respectfully dissent from the decision to remand this cause to the juvenile court. In my opinion, the record does not support the need for a remand, because it does not contain evidence from which the juvenile court could conclude that the children are dependent in the care of their custodian or custodians. I would, therefore, reverse the judgment of the juvenile court and remand the cause for entry of a judgment dismissing the dependency petitions.
S.C. (“the maternal grandmother”) filed dependency petitions regarding the children. In her petitions, she alleged that the children were dependent due to the conduct of their mother, C.G. However, the children's dependency resulting from the actions of their mother had been resolved by placing them in the custody of either S.L.M. or S.L.M. and R.S.M. See S.P. v. E.T., 957 So.2d 1127, 1131 (Ala.Civ.App.2005) (indicating that “final dispositional orders coincide with the end of the child's dependency, i.e., the child has a proper custodian ‘and ’ is no longer ‘in need of care or supervision’ by persons other than the custodian. See Ala.Code 1975, [former] § 12–15–1(10)n. In other words, under ideal circumstances, the final dispositional order results in a custody award wherein the parent or custodian is able and willing to have the care, custody, and control of the child, free from any intervention or supervision by the state under the dependency statutes.”). Thus, it was incumbent on the maternal grandmother to prove at trial that the children were presently dependent in order to receive custody of the children; that is, the maternal grandmother was required to prove that the children were dependent in the custody of the custodians before the juvenile court could award her custody of the children. See T.B. v. T.H., 30 So.3d 429, 431 (Ala.Civ.App.2009) (stating that a juvenile court may make a disposition of a child in a dependency proceeding only after finding the child dependent); see also V.W. v. G.W., 990 So.2d 414, 417 (Ala.Civ.App.2008) (quoting K.B. v. Cleburne Cnty. Dep't of Human Res., 897 So.2d 379, 389 (Ala.Civ.App.2004) (Murdock, J., concurring in the result)) (“ ‘[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition. ’ ”). Furthermore, a child cannot be dependent if he or she has a fit and willing parent or a fit and willing legal custodian (or custodians); in such a situation, the child is not dependent and custody remains with the parent or the legal custodian. J.W. v. T.D., 58 So.3d 782, 792 (Ala.Civ.App.2010). The maternal grandmother did not prove that the children were dependent in the care of the custodians; therefore, the only alternative available to the juvenile court was to dismiss her dependency petitions. See Ala.Code 1975, § 12–15–310(b).
For simplicity, although S.L.M. is the sole custodian of S.D.A. and S.L.M. and R.S.M. are joint custodians of R.D.A., I will refer to them as the custodians of both children for purposes of this dissent.
MOORE, J., concurs.
On Return to Remand
DONALDSON, Judge.
On April 12, 2013, we remanded this action to the Etowah Juvenile Court (“the trial court”). We were unable to determine from the final order of the trial court the basis for its decision to change the custody of S.D.A. and R.D.A. (“the children”) to S.C. (“the maternal grandmother”). Based on the argument of the children's custodians, S.L.M. and R.S.M., that the trial court had erred in finding the children to be dependant, we instructed that court, based on the existing record, to make the written findings required by Rule 25(A), Ala. R. Juv. P., as to whether the children were dependant as to S.L.M. and R.S.M., and, if so, to identify the grounds supporting the findings of dependency. S.L.M. v. S.C., 171 So.3d 656 (Ala.Civ.App.2013). A thorough statement of the facts is set out in this court's opinion remanding the action to the trial court. Assuming that the proceedings had been conducted as a dependency action, we stated in our prior opinion that, “[i]f the trial court finds that [either] child was not dependant as to her custodian or custodians, the petition should be dismissed as to that child.” 171 So.3d at 663. The trial court, in compliance with our instructions, filed its return to remand to this court; on remand, the trial court entered two identical orders, one relating to S.D.A. and one relating to R.D.A., which state, in part:
“[T]he Maternal Grandmother of the child[ ] did not raise the issue that the minor child was dependent at the hands of the Custodians of the minor child, to wit: [S.L.M. and S.R.M.], and no dependency of the minor child at the hands of the Custodians is found.
“2. The [maternal grandmother] filed a petition for custody of the minor child.... The [maternal grandmother] was not aware of the existence of the minor child until after custody was awarded to a non-relative. When the [maternal grandmother] found out about her granddaughter, she filed the Petition for Custody which this Court ruled on.
“3. The Court heard evidence at [a] hearing addressing the Petition for custody.... The [maternal grandmother] provided testimony that she is a fit and proper person to have the care, custody and control of the granddaughter. She also has custody of the minor child's older half sibling.
“4. At the hearing the mother of the minor child testified that the present custodians let her have overnight visits with the minor child. The mother also testified that she was still using drugs and still had a problem with them. She also testified that she did not want [the maternal grandmother] to have custody of the minor child because she would hold her accountable for using drugs and restrict her visits with the minor child if the mother was using drugs, but the present custodian understood her drug use even though it would make her mad. The Court was greatly disturbed by this, and concerned that the minor child was being exposed to the situation which removed her from her natural mother in the first place. It was clear and convincing evidence from the testimony of all the parties, that the [maternal grandmother] limits the contact between the mother and the older half-sibling but that the present custodians of the minor child [do] not.
“....
“5. After the hearing the testimony of all the parties, the Court entered an Order granting custody to the [maternal grandmother]. The custody Order was not based on the dependency of the minor child, even though the child does not have a parent who is willing to discharge her responsibilities to and for the child, with the natural mother of the child being addicted to Drugs.
“Based on the evidence, the Court finds that there has been a material change in circumstances in this case and that the positive good brought about by the modification would more than offset the inherently disruptive effect caused by uprooting the child. The child is young and the court finds that the young child will adapt to the circumstances. She would be living with a loving grandmother, with her other siblings.
“The Court finds that the positive good brought about by the change of custody would offset any disruption that might be caused. By granting custody of the child to the petitioner/grandmother, all of the children would be together, and be protected from their mother who admitted to still using drugs.
“This Court feels that the [Ex parte ] McLendon [, 455 So.2d 863 (Ala.1984),] standard has been met and the custody change is correct.”
The trial court has clarified that the proceedings on the maternal grandmother's petitions were not conducted as dependency actions. Thus, the first issue raised by S.L.M. and R.S.M. on appeal, alleging error in finding the children dependent is rendered moot.
The trial court's orders on remand clarified that custody of the children was changed from S.L.M. and R.S.M. to the maternal grandmother after applying the standard announced in Ex parte McLendon, 455 So.2d 863 (Ala.1984). Thus, this court must address the two remaining issues S.L.M. and R.S.M. present on appeal. S.L.M. and R.S.M. have argued that the maternal grandmother failed to present sufficient evidence to meet the McLendon standard and that the trial court was without jurisdiction to modify prior orders placing the children in the custody of S.L.M. and R.S.M. S.L.M. and R.S.M. argue that the maternal grandmother failed to present sufficient evidence to meet the McLendon standard to warrant a change of custody. S.L.M. and R.S.M. argue that the May 2011 order and the November 2011 order pertaining to S.D.A. and R.D.A., respectively, were final orders, as opposed to pendente lite orders, and therefore that the maternal grandmother's petitions to modify these custody orders should be subject to the McLendon standard. In support of this contention, S.L.M. and R.S.M. cite this court's holding in P.A. v. L.S., 78 So.3d 979 (Ala.Civ.App.2011). The maternal grandmother argues that the May 2011 and November 2011 orders were pendente lite orders and that the “best interests” standard should therefore apply to her petitions. The May 2011 order as to S.D.A. was entered as a “temporary” custody order, and the November 2011 order as to R.D.A. simply awards custody to S.L.M. and R.S.M., without designating whether the award was a pendente lite award and without setting any future hearings. On that basis, both orders are considered “final” for purposes of determining the proper custody-modification standard to apply. See P.A., 78 So.3d at 981 (“In a case involving the modification of a temporary custody order, our supreme court has held that the parties seeking to modify that order are required to meet the McLendon standard.”). This court has recently revisited the issue of the proper standard to apply for modification of custody in a case in which the child has previously been found to be dependent and the modification is sought by a nonparent family member. In B.C. v. A.A., 143 So.3d 198 (Ala.Civ.App.2013), this court held:
“The noncustodial relatives appeal the judgments insofar as they denied their petitions seeking custody of the children and terminated the award of specified visitation to them. The noncustodial relatives filed petitions seeking custody of the children, in which they asserted that the children's best interests would be better served if custody were modified. Once a juvenile court has placed a dependent child into the ‘permanent’ custody of a proper caregiver, the dependency of the child ends and any further change of custody is governed by the standards set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). See Ex parte J.P., 641 So.2d 276, 278 (Ala.1994) (applying the McLendon standard in a custody dispute between two sets of relatives when one set of relatives had been awarded custody under a prior judicial order). Thus, the noncustodial relatives were required to meet the McLendon standard in order to be entitled to a modification of the custody of the children. As our supreme court reaffirmed in Ex parte Cleghorn, 993 So.2d 462, 466–67 (Ala.2008) :
“ ‘In Ex parte McLendon, we held that the trial court cannot order a change of custody “ ‘unless [the party seeking the change of custody] can show that a change of the custody will materially promote [the] child's welfare.’ ” 455 So.2d at 865 (quoting Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947) ). We noted in
Ex parte McLendon that “[i]t is important that [the party seeking the change in custody] show that the child's interests are promoted by the change, i.e., that [the party seeking the change in custody] produce evidence to overcome the ‘inherently disruptive effect caused by uprooting the child.’ ” 455 So.2d at 866.'
“Our supreme court has also stressed that ‘[t]he McLendon standard is a “rule of repose,” meant to minimize disruptive changes of custody because this Court presumes that stability is inherently more beneficial to a child than disruption.’ Ex parte Cleghorn, 993 So.2d at 468. As noted above, the record contains evidence indicating that the children make good grades and are doing well in the custody of the custodians. Nothing in the record would support the conclusion that the children's best interest would be served by modifying custody and removing the children from the home of the custodians. Accordingly, we affirm the juvenile court's judgments insofar as they denied the noncustodial relatives' custody petitions.”
143 So.3d at 205–06. As in B.C., the matter before us presents a situation in which a “noncustodial relative[ ] filed petitions seeking custody of the children, in which [she] asserted that the children's best interests would be better served if custody were modified.” 143 So.3d at 205. Again, as in B.C., the “juvenile court ha[d] placed a dependent child into the ‘permanent’ custody of a proper caregiver,” and there being no new finding of dependency, “any further change of custody is governed by the standards set forth in Ex parte McLendon. ” 143 So.3d at 205. The question then before us is whether the maternal grandmother, as the petitioning noncustodial relative, met the McLendon standard. The trial court specifically found:
“Based on the evidence, the Court finds that there has been a material change in circumstances in this case and that the positive good brought about by the modification would more than offset the inherently disruptive effect caused by uprooting the child. The child is young and the court finds that the young child will adapt to the circumstances. She would be living with a loving grandmother, with her other siblings.
“The Court finds that the positive good brought about by the change of custody would offset any disruption that might be caused. By granting custody of the child to the petitioner/grandmother, all of the children would be together, and be protected from their mother who admitted to still using drugs.
“This Court feels that the McLendon standard has been met and the custody change is correct.”
Evidence was presented to the trial court ore tenus. The trial court personally observed the parties and was in the best position to observe their demeanor and to judge their credibility. The responsibility of making difficult decisions regarding child custody rests squarely on the shoulders of the trial judge, “who has actually seen and heard the parties and the witnesses [and] is infinitely more qualified to make a decision than an appellate court.” Ex parte D.W.W., 717 So.2d 793, 796–97 (Ala.1998).
Applying the ore tenus standard of review, the trial court's decision to modify custody did not amount to reversible error. See Ex parte Fann, 810 So.2d 631, 633 (Ala.2001) (“ ‘ “ ‘A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....’ ” ' ” (quoting Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting in turn other cases)). In its order on remand, the trial court articulated the reasons for the difficult decision it made:
“At the hearing the mother of the minor child testified that the present custodians let her have overnight visits with the minor child. The mother also testified that she was still using drugs and still had a problem with them. She also testified that she did not want [the maternal grandmother] to have custody of the minor child because she would hold her accountable for using drugs and restrict her visits with the minor child if the mother was using drugs, but the present custodian understood her drug use even though it would make her mad. The Court was greatly disturbed by this, and concerned that the minor child was being exposed to the situation which removed her from her natural mother in the first place. It was clear and convincing evidence from the testimony of all the parties, that the [maternal grandmother] limits the contact between the mother and the older half-sibling but that the present custodians of the minor child [do] not.”
The trial court modified custody, removing the children from the custody of two people who have no blood relation to the children and with whom they had been living for less than two years, and placing them in the custody of their maternal grandmother, who already has custody of the children's biological half sister as a result of a prior dependency action. Although a different decision could have been reached under these facts, the decision is supported by the record and cannot be disturbed on appeal.
S.L.M. and R.S.M. argue that the sufficiency of the prior custody orders was not properly before the trial court and that, therefore, the trial court was without authority to modify the prior orders. Specifically, S.L.M. and R.S.M. argue that the maternal grandmother could properly attack the prior custody orders of the trial court only by filing a motion under Rule 60(b), Ala. R. Civ. P., and that, because the maternal grandmother was not a party to the actions at the time the initial custody orders were entered, she lacked standing to bring such a motion. However, this argument is misplaced. Unlike an ordinary civil matter, pursuant to § 12–15–117(c), Ala.Code 1975, a juvenile court retains jurisdiction of a dependency case beyond a final judgment:
“In any case over which the juvenile court has jurisdiction, the juvenile court shall retain jurisdiction over an individual of any age to enforce or modify any prior orders of the juvenile court unless otherwise provided by law and also shall retain jurisdiction for the enforcement or modification of any prior orders of the juvenile court requiring the payment of fines, court costs, restitution, or other money ordered by the juvenile court until paid in full.”
In similar circumstances, this court has viewed postdisposition motions from nonparental family members as motions for a change of custody:
“The noncustodial relatives filed petitions seeking custody of the children, in which they asserted that the children's best interests would be better served if custody were modified. Once a juvenile court has placed a dependent child into the ‘permanent’ custody of a proper
caregiver, the dependency of the child ends and any further change of custody is governed by the standards set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984).... Thus, the noncustodial relatives were required to meet the McLendon standard in order to be entitled to a modification of the custody of the children.”
B.C., 143 So.3d at 205 ; Ex parte J.P., 641 So.2d 276, 279 (Ala.1994) ( “Therefore, the maternal aunt and uncle's petition for custody filed almost two years later was a petition for modification of custody; it was governed by the McLendon rule.”).
Based on the trial court's continuing jurisdiction over these matters, the maternal grandmother moved to intervene pursuant to Rule 24(a)(2), Ala. R. Civ. P., and there is no indication in the record that S.L.M. and R.S.M. objected to that motion to intervene. Further, as was the situation in B.C., the maternal grandmother, as a “noncustodial relative[,] filed a petition to intervene and a complaint in intervention in each action, seeking custody of the children.... The juvenile court permitted the noncustodial relative[ ] to intervene; it also consolidated the actions for trial.” B.C., 143 So.3d at 200.
Because S.L.M. and R.S.M. fail to demonstrate that the trial court lacked jurisdiction over the petitions filed by the maternal grandmother or that it erred in applying the McLendon standard and awarding custody to the maternal grandmother, we affirm the judgments of the trial court.
AFFIRMED.
THOMPSON, P.J., and PITTMAN, J., concur.
THOMAS, J., dissents, with writing.
MOORE, J., dissents, without writing.
THOMAS, Judge, dissenting.
I must respectfully dissent from the decision to affirm the custody award to S.C. (“the maternal grandmother”). As I stated in my original dissent to the opinion remanding this cause, see S.L.M. v. S.C., 171 So.3d 656, 663–64 (Ala.Civ.App.2012) (Thomas, J., dissenting) (footnote omitted):
“[The maternal grandmother] filed dependency petitions regarding the children. In her petitions, she alleged that the children were dependent due to the conduct of their mother, C.G. However, the children's dependency resulting from the actions of their mother had been resolved by placing them in the custody of [S.L.M. and R.S.M. (‘the custodians') ]. See S.P. v. E.T., 957 So.2d 1127, 1131 (Ala.Civ.App.2005) (indicating that ‘final dispositional orders coincide with the end of the child's dependency, i.e., the child has a proper custodian “and ” is no longer “in need of care or supervision” by persons other than the custodian. See Ala.Code 1975, [former] § 12–15–1(10)n. In other words, under ideal circumstances, the final dispositional order results in a custody award wherein the parent or custodian is able and willing to have the care, custody, and control of the child, free from any intervention or supervision by the state under the dependency statutes.’). Thus, it was incumbent on the maternal grandmother to prove at trial that the children were presently dependent in order to receive custody of the children; that is, the maternal grandmother was required to prove that the children were dependent in the custody of the custodians before the juvenile court could award her custody of the children. See T.B. v. T.H., 30 So.3d 429, 431 (Ala.Civ.App.2009) (stating that a juvenile court may make a disposition of a child in a dependency proceeding only after finding the child dependent); see also V.W. v. G.W., 990 So.2d 414, 417 (Ala.Civ.App.2008) (quoting K.B. v. Cleburne Cnty. Dep't of Human Res., 897 So.2d 379, 389 (Ala.Civ.App.2004) (Murdock, J., concurring in the result)) (‘ “[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that
disposition. ” ’). Furthermore, a child cannot be dependent if he or she has a fit and willing parent or a fit and willing legal custodian (or custodians); in such a situation, the child is not dependent and custody remains with the parent or the legal custodian. J.W. v. T.D., 58 So.3d 782, 792 (Ala.Civ.App.2010).”
Both Ex parte J.P., 641 So.2d 276, 278 (Ala.1994), and B.C. v. A.A., 143 So.3d 198 (Ala.Civ.App.2013), involved the modification of custody orders in resolved dependency actions by parties who had been involved in the original dependency and custody dispute. That is, neither Ex parte J.P. nor B.C. involved a stranger to the proceeding seeking custody for the first time. Although the juvenile court retains jurisdiction over a child who has been the subject of a dependency proceeding pursuant to Ala.Code 1975, § 12–15–117(c), the juvenile court cannot act without a proper petition, be it a dependency petition or a modification petition, before it. If a person who has not been a party to the proceeding wishes to alter a custody award entered in a final dependency judgment, that party must institute a new action; as I explained in my dissenting opinion on original submission, the only action a stranger to the dependency proceeding may institute is a dependency action. Thus, because I would reverse the judgment of the juvenile court, which expressly determined that the children were not dependent in the care of the custodians, I respectfully dissent from the main opinion.
On Application for Rehearing
DONALDSON, Judge.
APPLICATION OVERRULED.
THOMPSON, P.J., and PITTMAN, J., concur.
MOORE, J., dissents, with writing, which THOMAS, J., joins.
MOORE, Judge, dissenting.
On original submission, this court, in describing the convoluted procedural history of this case, stated:
“On May 30, 2012, [S.C.,] the maternal grandmother[,] filed a ‘Petition to Intervene and For Custody’ in the action relating to each child. The petitions specifically allege that the children are dependent as to [C.G.,] the mother [,] and the biological father and acknowledged that the children might be in the temporary custody of S.L.M.; however, the petitions do not specifically allege that the children are dependent while in S.L.M.'s custody. The trial court held a hearing on the petitions and heard testimony ore tenus from all parties. No party objected to the proceedings, which were in the nature of a hearing as to the dependency of the children, not a custody-modification hearing. ”
S.L.M. v. S.C., 171 So.3d 656, 659 (Ala.Civ.App.2013) (emphasis added). The above excerpt indicates that this court determined on original submission that the Etowah Juvenile Court (“the trial court”) had conducted an adjudicatory hearing to determine the dependency of S.D.A. and R.D.A. (“the children”), see § 12–15–310(a), Ala.Code 1975, “not a custody-modification hearing.” 171 So.3d at 659.
This court further concluded on original submission that the trial court had failed to comply with Rule 25 of the Alabama Rules of Juvenile Procedure, which relates to the findings a juvenile court must make following an adjudicatory hearing on dependency. See Rule 25(A), Ala. R. Juv. P. This court stated:
“As a threshold matter, the trial court's August 2012 order does not make the required finding as to whether the children were dependent as of the time of the hearing rather than when the trial
court made its initial determinations in the actions into which the maternal grandmother petitioned to intervene, and, moreover, the order fails to identify the specific grounds to support a finding of dependency pursuant to § 12–15–102(8) [, Ala.Code 1975].
“Because there had been an explicit prior determination that R.D.A. was dependent and an implicit determination of dependency as to S.D.A., the trial court was required to determine, by clear and convincing evidence, whether, as of the time of the hearing, the children were dependent while in the custody of their respective custodians—i.e., S.L.M. for S.D.A. and S.L.M. and R.S.M. for R.D.A. A finding of dependency must be made separately as to each child before the trial court may determine whether the maternal grandmother should have custody. The trial court's August 2012 order is not sufficient to infer that such determinations of dependency have been made.”
171 So.3d at 663 (emphasis added). In other words, this court determined that the trial court, following an adjudicatory hearing in a dependency proceeding, had failed to make a finding that the children were currently dependent in the custody of S.L.M. and R.S.M., a finding necessary to sustain its judgment awarding the maternal grandmother custody.
Based on those two conclusions, this court remanded the case for the trial court to make the appropriate dependency findings necessary to sustain its custody disposition, stating:
“Therefore, we remand this cause to the trial court for it to make, based on the existing record, the written findings required by Rule 25(A), Ala. R. Juv. P., as to whether each child is dependent as to her custodian or custodians and, if so, identifying the grounds supporting the findings of dependency. If the trial court finds that the child was not dependent as to her custodian or custodians, the petition should be dismissed as to that child.”
171 So.3d at 663. We remanded the case to the trial court solely for the purpose of either (1) finding the children dependent in the care of S.L.M. and R.S.M., in which case this court, on return to remand, would review the evidence to determine if clear and convincing evidence supported that determination, see Ex parte McInish, 47 So.3d 767, 778 (Ala.2008), or (2) finding that the children were not dependent in the care of S.L.M. and R.S.M., in which case the trial court was instructed to dismiss the actions filed by the maternal grandmother.
“ ‘It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered.... The appellate court's decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate ....’ ”
Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983) (quoting 5 Am.Jur.2d Appeal and Error § 991 (1962)). Hence, on remand, the trial court was obligated to make one of the two findings mandated by this court and to return the matter to this court upon making one of those two findings. The trial court did not do that.
On remand, the trial court determined (1) that the maternal grandmother had not filed dependency petitions, but, rather, had filed custody-modification petitions; (2) that it had treated and tried the case solely as a custody-modification proceeding; (3) that, because the maternal grandmother had filed only custody-modification petitions, a finding of dependency was not necessary to transfer custody of the children from S.L.M. and R.S.M. to her; (4) that the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), applied to the case; and (5) that the maternal grandmother had met the McLendon standard. Not only did the trial court fail to follow our directive to make an express determination as to the dependency of the children, the trial court directly contradicted our holding that the case was not a custody-modification case as a reason for avoiding our mandate. However, the trial court was not free to reconsider that issue, which had already decided by this court, Ex parte S.T.S., 806 So.2d 336, 341 (Ala.2001), or to enter, on remand, a judgment that would “ ‘render meaningless the decision of the [appellate court] in the first appeal.’ ” Alfa Mut. Ins. Co. v. Nationwide Mut. Ins. Co., 684 So.2d 1295, 1302 (Ala.1996).
Rather than correct the trial court, this court, in its opinion on return to remand, see S.L.M. v. S.C., 171 So.3d 656, 664 (Ala.Civ.App.2013), reviewed the judgment for the first time as a custody-modification determination and affirmed it. That we cannot do. “[W]hatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.” Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987). The law-of-the-case doctrine “will not permit the trial court to reverse itself.” Quimby v. Memorial Parks, Inc., 835 So.2d 134, 135 (Ala.2002). Having already determined that this matter involves a judgment from dependency proceedings, this court could not subsequently conclude otherwise, even if it was convinced that it had erred in its earlier determination.
Although the trial court has not yet complied with our mandate, I find no need to remand the case again. I agree with Judge Thomas's dissent on original submission that the record contains no evidence, much less clear and convincing evidence, indicating that the children are dependent in the care of S.L.M. and R.S.M. 171 So.3d at 663 (Thomas, J., dissenting). Therefore, I would grant S.L.M. and R.S.M.'s application for rehearing, I would reverse the trial court's judgment, and I would direct the trial court to dismiss the maternal grandmother's dependency petitions. In so doing, this court would preserve the stability of these young children by keeping them in an indisputably suitable home with two undeniably commendable and caring custodians instead of uprooting them to live with complete strangers, although ones related by blood, in an unknown environment.
The record indicates that the younger child was born premature with less than a 5% chance of surviving, but S.L.M. attended to her throughout her infancy and has continued, along with R.S.M., to assure that her medical needs are met. Furthermore, I conclude that the record does not support a finding that S.L.M. or R.S.M. has ever allowed the mother to be around the children while using drugs, as the trial court implied in its order on remand.
The maternal grandmother testified that she had never seen the children. The record also disclosed that the older sister of the children, who resides with maternal grandmother, had never met the children, although she had seen photographs of them.
The children have lived in the Gadsden area their entire lives. The maternal grandmother lives in Waco, Kentucky.
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THOMAS, J., concurs.