G.C. v. G.D.

• Decision Date: 25 July 1997
• Citation: 712 So.2d 1091
• Parties: G.C. and E.C. v. G.D. 2960471, 2960694.
• Court: Alabama Court of Civil Appeals

Page 1091

712 So.2d 1091

G.C. and E.C. v. G.D.

2960471, 2960694.

Court of Civil Appeals of Alabama.

July 25, 1997.

Rehearing Denied Aug. 29, 1997.

Certiorari Quashed April 17, 1998

Alabama Supreme Court 1962077.

Robert D. Drummond, Jr., Montgomery, for appellants.

J. Coleman Campbell and Lynn S. Merrill, asst. attys. gen., Department of Human Resources, for appellee.

CRAWLEY, Judge.

C.D. is the daughter of G.D. In 1994, when C.D. was three years old, her mother died of cancer. Less than a year later, G.D. remarried. In May 1995, two petitions alleging the dependency of C.D. were filed in the Bibb Juvenile Court: one by C.D.'s maternal grandparents--G.C. and E.C., and one by the Bibb County Department of Human Resources (DHR).

When the petitions were filed, C.D. was in the burn unit of Children's Hospital in Birmingham being treated for second- and third-degree burns from scalding water, injuries allegedly inflicted by her stepmother. On May 15, 1995, the Bibb Juvenile Court issued a preadjudication removal order placing C.D. in DHR's custody. Following a 72-hour hearing, the trial court ordered that temporary custody be awarded to DHR, with placement in a "nonrelated" foster home.

In April 1996, after C.D. had been in foster care for 10 months, the juvenile court held a status hearing. Between April and December 1996, DHR filed several reports with the court and the court held several more status hearings, each time continuing the child in DHR's custody with placement in foster care.

Despite her claim that she had accidentally spilled hot water on C.D., the stepmother was arrested and was indicted for child abuse. The father supported the stepmother's version of the scalding incident and maintained that his wife was innocent until October 7, 1996. On that date, the stepmother was convicted of assault in the third degree. Later, the father was convicted of a separate criminal offense (tampering with a witness), for his attempt to influence C.D.'s testimony in favor of his wife.

On October 23, 1996, the father petitioned for custody of C.D., alleging that the conditions that had led to C.D.'s being dependent no longer existed. By November 1996, the father and stepmother were divorced. Following a hearing on December 9-10, 1996, at which DHR withdrew its dependency petition and recommended that C.D. be returned to her father, the juvenile court determined that C.D. was no longer dependent; it returned her, with certain restrictions during a "phase in" period, to the custody of her father. The grandparents appeal, raising four issues.

I

The grandparents first contend that the trial court's judgment is so unsupported by the evidence as to be plainly and palpably wrong. We disagree.

It is clearly within the court's discretion to determine matters of dependency and custody, particularly when evidence is presented ore tenus. The court's judgment is presumed correct and will be set aside only if it is unsupported by the evidence and is therefore plainly and palpably wrong. J.M. v. State Dep't of Human Resources, 686 So.2d 1253 (Ala.Civ.App.1996); H.A. v. Limestone County Dep't of Human Resources, 628 So.2d 948 (Ala.Civ.App.1993). Although this court has grave reservations about the way in which DHR handled this case, ¹ we will not allow DHR's mismanagement to inure to the benefit of the grandparents when the trial court had evidence before it from which it could be determined that it was in the child's best interest to be returned to her father's custody.

Initially, we note that a primary goal of the Alabama Juvenile Justice Act is "[t]o reunite a child with his parents as quickly and safely as possible when the child has been removed from his parents' custody." Ala.Code 1975, § 12-15-1.1. The trial court's conclusion that "it is in the best interest of [C.D.] that she be returned to the custody of her father subject to certain restrictions and conditions" is not plainly and palpably wrong.

The evidence clearly established that C.D. had been found dependent because of the physical abuse by her stepmother. The evidence presented at trial established that, although the father had originally maintained that the stepmother was innocent (believing that the stepmother had accidentally burned the child) and had even attempted to influence the child's testimony to that effect, the father had eventually become convinced that the stepmother had intentionally burned the child. The evidence presented at trial established that the father had divorced the stepmother and that she, therefore, no longer presented a danger to the child. The guardian ad litem recommended that the father and his daughter be reunited.

There was a conflict in the testimony regarding whether the father had dealt with some emotional issues that had been identified by DHR as requirements for reunification with his daughter. The trial court heard the father's testimony and was in the best position to evaluate his credibility, sincerity, and dedication to achieving the kind of stability that would allow reunification with his daughter. We cannot substitute our judgment for that of the trial court on such issues.

We note that the trial court's order did not grant an abrupt change of custody but, instead, provided for a gradual transition in custody. The court ordered that the change in custody be "phased in" so that C.D. would have time to adjust to leaving her foster family, with whom, the trial court found, C.D. had formed a strong attachment. The order also provided that, after reunification, C.D. was to continue with individual counselling and the family was to continue with family counselling. The counsellors were required to submit quarterly reports to the juvenile court, and DHR was to monitor the placement and report to the court within 90 days. The court stated that it would review the matter within six months.

The juvenile court is authorized to view the totality of the circumstances when making a finding in a dependency proceeding. D.P. v. State Dep't of Human Resources, 571 So.2d 1140 (Ala.Civ.App.1990). In light of all the circumstances, we cannot hold that the trial court's order returning the child to the custody of her father was plainly and palpably wrong.

II

Relying on § 12-15-65(a), Ala.Code 1975, the grandparents argue that the trial court erred by permitting DHR to participate in the dispositional hearing. The grandparents maintain that, after DHR dismissed its dependency petition and recommended that C.D. be reunited with her father, DHR was no longer a party to the proceeding and should have been excluded. Section 12-15-65(a) provides:

"Hearings under this chapter shall be conducted by the court without a jury and separate from other proceedings. The general public shall be excluded from ... dependency hearings and only the parties, their counsel, witnesses, and other persons requested by a party shall be admitted. Other persons as the court finds to have a proper interest in the case or in the work of the court may be admitted by the court on condition that the persons refrain from divulging any information which would identify the family or the child involved."

(Emphasis added.)

Clearly, the trial court was within its discretion by allowing DHR to participate in the proceeding because DHR had custody of the child and, therefore, had "a proper interest in the case."

III

The grandparents claim that the trial court abused its discretion by relying, in its final disposition order, on reports not made available to the parties and not subject to cross-examination.

The juvenile court's order dated December 19, 1996, held that C.D. was no longer dependent and that it was in her...