C.P. v. M.K.

• Decision Date: 11 February 1994
• Citation: 667 So.2d 1357
• Parties: C.P. v. M.K. and R.M.K. (In the Matter of O.P.). AV92000523.
• Court: Alabama Court of Civil Appeals

Page 1357

667 So.2d 1357

C.P. v. M.K. and R.M.K.

(In the Matter of O.P.).

AV92000523.

Court of Civil Appeals of Alabama.

Feb. 11, 1994.

Appeal from Russell Juvenile Court, No. JU-91-437.01; Albert L. Johnson, Judge.

F. Patrick Loftin of Loftin, Herndon & Loftin, Phenix City, for appellant.

Michael J. Bellamy, Phenix City, for appellees.

ROBERTSON, Presiding Judge.

This case is before us for the second time. In C.P. v. M.K., 618 So.2d 126 (Ala.Civ.App.1992), cert. denied, 618 So.2d 126 (Ala.1992), we reversed and remanded for the trial court to determine if the mother was an unfit and improper person to be entrusted with the care and upbringing of her minor child under the standard set out in our supreme court's opinion in Ex parte Terry, 494 So.2d 628 (Ala.1986), because the record evidence did not support a finding of dependency that would bring the child within § 12-15-71, Ala.Code 1975.

After the remand, the mother, C.P., filed a motion requesting that the minor child be returned to her custody. Without taking any additional testimony or other evidence, the trial court entered a judgment finding the mother to be an unfit and improper person to be entrusted with the care and upbringing of the minor child, and it again found the minor child to be a dependent child, pursuant to § 12-15-1(10), Ala.Code 1975. The trial court awarded temporary custody of the minor child to the petitioners, maternal uncle and the uncle's wife, and awarded the mother the right of weekend visitation with her minor child.

The mother appeals again, contending that the petitioners failed to present substantial evidence to warrant the removal of custody from the parent.

Although, as previously stated, the trial court found the minor child to be dependent, the record does not contain sufficient evidence to support that finding of dependency. "Ordinarily, a judgment of dependency and subsequent transfer of custody of a child as provided for in § 12-15-71, [Ala.Code 1975], are governed by the child's best interests...." Jones v. Webb, 524 So.2d 374 (Ala.Civ.App.1988). As Judge Ingram wrote in Jones, "Both statute and case law seem clear that once dependency is determined, the trial court is authorized to make certain dispositions, including transferring the legal custody of a dependent child to a relative. Section 12-15-71, [Ala.Code 1975]; Sanders v. Guthrie, 437 So.2d 1313 (Ala.Civ.App.1983)." Jones, 524 So.2d at 374. Further, this court recognizes that there will be instances when a child is dependent or in need of supervision, and the parent or parents are not unfit, i.e., when a child disobeys his or her parents and is beyond their control, § 12-15-1(4)b., Ala.Code 1975, has committed an offense established by law but not classified as criminal, § 12-15-1(4)c., Ala.Code 1975, or when the child's parents are unable to discharge their responsibilities to the child (illness, injury, hospitalization, etc.), § 12-15-1(10)k., Ala.Code 1975.

As in Jones, our review of the record evidence convinces us that this case is more of a custody case than a determination of dependency case. Hence, the Terry standard applies since the custody dispute is between a parent and a nonparent. Terry, supra. Under the Terry standard, a parent has a presumptive right to custody of his or her child in a custody dispute between the parent and a nonparent, and that presumptive right may be overcome only by proof that the parent "is guilty of misconduct or neglect to a degree rendering that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question." 494 So.2d at 632. (Citations omitted.)

The evidence presented at the original proceeding reflects that the mother was a high school student, living with her father (the child's maternal grandfather). The maternal grandmother is deceased. The mother testified that she worked 30 to 35 hours a week, earning $4.25 per hour. She receives $366 per month in Social Security benefits as the result of her mother's death. The mother further testified that she made arrangements for a babysitter to care for the minor child while the mother attended school. The maternal grandfather testified that he had agreed to care for the minor child while the mother was at work and that the minor child had his own room in the maternal grandfather's home, where the mother lived.

The record also contains a study of the mother's home, prepared by the Russell County Department of Human Resources at the request of the trial court. The home study did not indicate that the mother was an unfit or neglectful parent. Furthermore, the record is devoid of any evidence indicating that the mother is guilty of misconduct or neglect to such a degree as to render her an unfit and improper person to be entrusted with the care and upbringing of her minor child.

The judgment of the trial court is reversed, and this case is remanded for the entry of a judgment granting custody of the minor child to the mother.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, J., concurs.

THIGPEN, J., concurs in part and dissents in part.

THIGPEN, Judge, specially concurring in part and dissenting in part.

I concur that the record does not support a finding that the mother is unfit, and, therefore, that finding must be reversed; however, I do not agree that the trial court is now required to enter a judgment granting custody to the mother. Although I concurred in the remand of the original case, upon closely revisiting this case, I am now convinced that no finding regarding fitness is required.

Although the original opinion characterized the case as one involving "a custody dispute between nonparents and a parent," the reasoning utilized by the majority in that opinion overlooked the critical language of the longstanding precedent concerning a natural parent's voluntary relinquishment of the right to a child's custody. C.P. v. M.K., 618 So.2d 126, 127 (Ala.Civ.App.1992). See Ex parte Terry, 494 So.2d 628 (Ala.1986). Further, I refuse to extend the unfitness requirement to a situation involving dependency found pursuant to the juvenile code. Ala.Code 1975, § 12-15-1 et seq. To require a finding of a parent's unfitness, following a finding that the child is dependent, imposes a requirement outside the statutes and existing case law. It appears to me that confused pleading and proof at the trial level have misled the course of this case on a journey of merged legal requirements.

After careful reexamination and reconsideration of the facts in the present case, which were the same as those involved in the original appeal, I now realize that application of the correct legal principles mandates that in the original appeal, the judgment of the trial court should have been affirmed; as such, I now realize that I should have dissented from the majority opinion in the original appeal. Also, I now conclude that I may have been incorrect in concurring with the majority in P.M.L. v. D.T.P., 613 So.2d 1288 (Ala.Civ.App.1992), which was a similar situation wherein the appealing parent specifically challenged the juvenile court's finding of dependency, and this court did not address that issue.

In the original appeal of this case, this court reversed the judgment of the trial court, and remanded the cause "for the trial court to determine if the mother is an unfit and improper person to be entrusted with the care and upbringing of the minor child." C.P. 618 So.2d at 127. There, and now on this appeal, the majority has failed to consider the assertions of the petitioners that the mother voluntarily relinquished her prima facia right to custody, and also that the trial court found that the child was a dependent child pursuant to Ala.Code 1975, § 12-15-1(10). Furthermore, in both instances, this court has not recognized that the trial court expressly stated to the parties that "what I'll be weighing the evidence against will be the statute on dependency." That language is a clear indication to me that the trial court considered this case to be a dependency case, not a custody case, as characterized by the majority opinions on both occasions.

It appears to me that the confusion in this case is the unfortunate result of an amalgamation of requirements involving custody, dependency, and the termination of parental rights. The procedural history of the case apparently ventured off course when the original petition in juvenile court alleged that the child was dependent and sought temporary custody. Following an initial hearing the trial court ordered that the child be placed in shelter care with the petitioners, and it ordered specific and unrestricted visitation for the mother. Ala.Code 1975, §§ 12-15-53 through -60. At the initial hearing, the trial court specifically noted, among other things, the involvement of the Department of Human Resources (DHR), the allegations of abuse and neglect, and the allegations regarding the putative father's violent behavior towards the mother which could endanger the child's safety.

Subsequently, a hearing was held wherein the trial court considered testimony, reports, evaluations, and recommendations accumulated from the petitioners, the mother, the putative father, the child's maternal grandfather, a neighbor of the petitioners and the mother, and social workers representing the interests of the Department of Human Resources (DHR).

At that hearing, there was conflicting evidence regarding where the child had lived and who had cared for him for most of his life, the mother's involvement with him, the mother's involvement with his father, the mother's subsequent miscarriage, the mother's immature and irresponsible behavior towards the child and others, the lack of supervision provided to the mother by the maternal grandfather, the mother's school and employment experience, the mother's financial resources and her lack of interest in providing for the child's needs, etc. To further confuse the...