F.W. v. T.M., 2120430.

• Decision Date: 16 August 2013
• Docket Number: 2120430.
• Parties: F.W. v. T.M. and K.M.
• Court: Alabama Court of Civil Appeals

140 So.3d 950

F.W.

v.T.M. and K.M.

2120430.

Court of Civil Appeals of Alabama.

Aug. 16, 2013.

Norma M. Wells, Albertville, for appellant.

James D. Walker, Albertville, for appellees.

DONALDSON, Judge.

F.W. appeals from a judgment of the Marshall Juvenile Court (“the juvenile court”) awarding T.M. and K.M. (“the foster parents”) custody of M.S. (“the child”).

Facts and Procedural History

A.S. (“the mother”) gave birth to the child at Huntsville Hospital on October 22, 2011. Because of the mother's erratic behavior and her refusal to feed the child following birth, the hospital staff removed the child from the mother's hospital room and contacted the Department of Human Resources. Around the time of the child's birth, the child's father, J.H. (“the father”), had been detained in the Marshall County jail for allegedly telephoning a bomb threat into his place of employment. On October 24, 2011, the Marshall County Department of Human Resources (“DHR”) filed a petition alleging that the child was dependent and requesting that the child be removed from the custody of the mother. The juvenile court granted DHR's request for removal and placed the child in the legal custody of DHR. On October 25, 2011, DHR placed the child into the physical custody of the foster parents. Following a shelter-care hearing on October 26, 2011, the juvenile court determined that the child would remain in the legal custody of DHR. The juvenile court conducted an adjudicatory hearing on November 29, 2011, and, on November 30, 2011, the juvenile court entered an order adjudicating the child to be dependent. The juvenile court awarded legal custody of the child to DHR, and the child remained in the physical custody of the foster parents.

Following the removal of the child from the mother, DHR sought to locate a suitable relative placement for the child. As the juvenile court noted in its final judgment rendered in this case in January 2013, “[a] number of different relative placements, too lengthy to list here, were determined unsuitable by DHR, for a variety of reasons, including unwillingness to accept the child and/or prior indicated reports of child abuse.” The record shows that in January 2012 F.W. contacted DHR with a request that she and her husband, C.W., be considered for relative placement of the child. F.W. is the sister of the child's maternal grandmother, thus making F.W. and C.W. the child's maternal great-aunt and great-uncle. Shortly thereafter, DHR approved F.W. and C.W. as a suitable relative placement for the child. The record indicates that DHR planned to transfer the child from the foster parents' home on February 8, 2012. On February 1, 2012, the foster parents filed a petition to intervene in the dependency case. In the petition, the foster parents requested that the juvenile court enter emergency relief to prevent DHR from removing the child from the foster parents' physical custody and “that the Court enter such orders concerning temporary and permanent custody of the minor child as may be in the best interest of the minor child, including, if the Court deems appropriate, temporary and permanent custody [with the foster parents].” The record reveals that the foster parents based their petition on the allegation that F.W. and C.W. were unable to care for the child due to concerns with F.W.'s and C.W.'s health and based on F.W.'s and C.W.'s close association with and location to family members and others who engaged in illegal or illicit activity. The record indicates that, at a hearing on February 7, 2012, DHR opposed the foster parents' petition to intervene based on their lack of standing and that DHR opposed the foster parents' motion for an emergency order preventing the removal of the child from their physical custody. On February 7, 2012, F.W. and C.W. filed a motion to intervene, in which they also requested permanent custody of the child. The record reveals that the juvenile court granted their petition without opposition from any party. On February 21, 2012, the foster parents amended their petition to request termination of the mother's parental rights. The record indicates that the foster parents also filed a separate petition for termination of the mother's parental rights.¹ On March 15, 2012, the juvenile court entered an order granting the foster parents' request to intervene.

On or about April 1, 2012, DHR removed the child from the foster parents' home and placed the child in the physical custody of F.W. and C.W. The juvenile court held a hearing on April 4, 2012, on the foster parents' petition for emergency relief. The juvenile court determined from the evidence presented at the hearing that the conditions surrounding F.W. and C.W. were troublesome, but did not rise to a level requiring the removal of the child from F.W. and C.W.'s home.

Ore tenus testimony was taken at the trial of the case on December 4, 2012, and January 2, 2013. In its final judgment, entered on January 4, 2013, the juvenile court noted that the issue that had been tried was narrow:

“The sole issue for the Court's determination was: (1) pursuant to the Alabama Juvenile Justice Act (2008), as amended, should custody of the child be awarded to [F.W. and C.W.], as a relative placement; or should custody of the child be awarded to the [the foster parents]. The child was found to be dependent by prior Order of the Court, and the continuing dependency of the child was stipulated by all parties present and not at issue.”

The juvenile court made the following findings of fact, among others:

“The Court took evidence ore tenus. After long and careful deliberation, the Court finds by clear and convincing evidence, material and relevant in nature, the following:

“....

“On April 5, 2012, this Court entered an Order which provided in part [that DHR was to place the child with F.W. and C.W., but that J.D.W., M.D.W., P.B., L.H., C.H., and L.D. were to have no contact with the child and were not to be on or around the property of F.W. and C.W.'s home while the child was present].

“[F.W. and C.W.] are both fifty-five (55) years of age. [C.W.] has recently suffered from three (3) separate heart attacks, and has a surgically implanted defibrillator to regulate his cardiac condition. [C.W.] draws Social Security disability in the amount of approximately $1,800.00 to $1,900.00 per month related to his heart condition. ... [F.W.] suffers from fibromyalgia and arthritis. She previously applied for Social Security disability, but her disability claim was denied. [F.W.] has not been employed in recent years. [F.W. and C.W.] smoke cigarettes.

“[C.W.]'s mother, [M.W.], owns approximately ten (10) acres of land located [in Marshall County] ... (‘the ... family property’). [F.W. and C.W.] reside in a two-bedroom home located upon the ... family property (‘[F.W. and C.W.]'s home’). [M.W.] also lives on the ... family property, in an adjacent home. Also located upon the ... family property are the following; (1) a trailer currently occupied by [J.D.W.]; (2) a camper which is owned by [P.C.B.], one of [J.D.W.]'s paramours; (3) a woodworking shop used by [C.W.]; and (4) a barn.

“[F.W. and C.W.] have five adult children: (1) daughter, [L.W.]; (2) son, [J.D.W.]; (3) daughter, [M.D.W.]; (4) daughter, [S.W.]; and (5) [Ch.W.]. Of these, [L.W.] lived within [F.W. and C.W.]'s home at the time this Petition was filed, but had moved out of state at the time of hearing. Throughout the pendency of this litigation, [F.W. and C.W.'s] son, [J.D.W.], has lived intermittently in the trailer adjacent to [F.W. and C.W.'s] home and located on the ... family property. [F.W. and C.W.'s] daughter, [M.D.W.], currently resides just down the street, within walking distance of the ... family property. The testimony is unclear where [S.W.] resides. [Ch.W.] lives in Guntersville, Alabama. From the testimony, it appears that [Ch.W.] maintains little contact with the rest of the ... family.

“[J.D.W.] was convicted in April, 2012, of felony theft of property in the second degree. Additionally, [J.D.W.] grew marijuana plants on the ... family property with equipment provided by, or at least purchased by [F.W.]. Furthermore, [J.D.W.] has been the subject of numerous other arrests and criminal investigations, including alleged domestic violence related to [P.C.B.], who at the time of hearing, was also living on the ... family property on an intermittent basis. At some time in late 2012 or early 2013, the Marshall County Sheriff's Department recovered a stolen Ford pickup truck from the barn located on the ... family property. The guardian ad litem's testimony in this matter indicates that [J.D.W.] was likely involved in the theft of this vehicle, or at least its concealment on the ... family property; however, the current status of any criminal charge related to this incident is unclear.

“The Court is convinced that [J.D.W.] is habitually involved in nefarious and/or criminal activity, including drug related activity, theft and domestic violence.

“[M.D.W.] was convicted in April, 2011, of felony fraudulent use of a credit card. [S.W.] has, in the past, been employed as a ‘stripper’....

“In addition to [F.W. and C.W.'s] adult children, [C.W.'s] sister, [D.W.M.], recently lived upon the ... family property for approximately two (2) to three (3) weeks. [D.W.M.] was recently arrested and charged with manufacturing crystal methamphetamine in DeKalb County, Alabama. [D.W.M.] lived upon the ... family property immediately following her making bond and being released from the DeKalb County Jail, pending the above-referenced charges. [D.W.M.] testified at Court that she could not pass a drug test on the day of hearing.

“Since the time of this Court's April 5, 2012 Order, which provided that [J.D.W.] and [P.C.B.] were not to be on or around the premises of [F.W. and C.W.'s] home, both have moved into the trailer and/or camper on the ... family property, and were currently residing...