H.C. v. S.L.

• Decision Date: 30 March 2018
• Docket Number: 2170184
• Citation: 260 So.3d 884
• Parties: H.C. v. S.L.
• Court: Alabama Court of Civil Appeals

260 So.3d 884

H.C.

v.S.L.

2170184

Court of Civil Appeals of Alabama.

March 30, 2018

Kelly R. Knight of Gorham & Knight, LLC, Birmingham, for appellant.

Kevin R. Roberts, Birmingham, for appellee.

Benita Jenkins, Birmingham, guardian ad litem.

THOMPSON, Presiding Judge.

This is the second time these parties have been before this court.

The procedural history of this case is set forth in H.C. v. S.L., 251 So.3d 793, 793-94 (Ala. Civ. App. 2017), as follows:

"On August 12, 2015, S.L. (‘the paternal grandmother’) filed in the Jefferson Juvenile Court, Bessemer Division (‘the juvenile court’), a petition seeking to have N.L. (‘the child’) declared dependent and seeking an award of custody of the child. The juvenile court entered an order on September 1, 2015, finding the child dependent and awarding the paternal grandmother pendente lite custody of the child. A similar order was entered on October 19, 2015. It is undisputed that H.C. (‘the mother’) had not been served at the time either of those orders was entered. The paternal grandmother filed an amended dependency petition on December 11, 2015.

"The juvenile court conducted a hearing on May 11, 2016, and July 5, 2016. At the close of that hearing, the juvenile court orally found the child dependent, cited reasons for that finding, and scheduled a dispositional hearing for December 2016, during which, it said, it would receive additional evidence from the parties. The juvenile court entered an order on July 8, 2016, in which it found the child dependent, awarded custody to the paternal grandmother, and ordered the attorneys for the parties and the child's guardian ad litem to agree on a visitation schedule for the mother for the fall of 2016. In that order, the juvenile court scheduled the dispositional hearing for December 15, 2016.

"The juvenile court conducted the dispositional hearing on December 15, 2016, and December 16, 2016. On December 22, 2016, the juvenile court entered a judgment in which it noted that the child had previously been found dependent, awarded custody of the child to the paternal grandmother, and closed the case.... [T]he mother timely appealed.

"The mother argue[d] on appeal that the juvenile court erred in awarding custody of the child to the paternal grandmother because, she [said], the child was not dependent at the time the December 22, 2016, dispositional judgment was entered."

This court noted that the juvenile court could make a custodial disposition of the child only if it determined that the child was dependent at the time it entered the December 22, 2016, judgment. See H.C. v. S.L., 251 So.3d at 794 (citing T.B. v. T.H., 30 So.3d 429, 431 (Ala. Civ. App. 2009), and V.W. v. G.W., 990 So.2d 414, 417 (Ala. Civ. App. 2008) ). In its December 22, 2016, judgment, the juvenile court had not made a finding regarding whether the child was dependent at the time of that judgment. This court held that, given the record, we could not conclude that a dependency determination was implicit in the juvenile court's December 22, 2016, judgment. 251 So.3d at 794 (citing, among other cases, S.L.M. v. S.C., 171 So.3d 656 (Ala. Civ. App. 2013), and J.P. v. S.S., 989 So.2d 591, 598 (Ala. Civ. App. 2008) ). This court explained:

"This court has reviewed the evidence in the record on appeal. It is not clear from our review whether the child remained dependent when the December 22, 2016, dispositional judgment was entered, and, therefore, this court cannot, as we did in J.P. v. S.S., supra, interpret the juvenile court's December 22, 2016, judgment as containing an implicit dependency determination. We conclude that the juvenile court must make a determination regarding whether the child remained dependent at the time the December 22, 2016, judgment was entered."

251 So.3d at 795. Accordingly, we reversed the December 22, 2016, judgment and remanded the cause to the juvenile court to enter a new judgment.

On October 11, 2017, the juvenile court entered a judgment on remand finding that, at the time of the December 22, 2016, judgment, the child had remained dependent. The mother again timely appealed.

The record indicates the following pertinent facts. The mother and the father never married, but they lived together in Colorado. The child was born in Colorado in February 2010, and the mother, the father, and the child lived there together for some period. The paternal grandparents, the maternal grandmother, and the maternal grandfather all live in Alabama. The maternal grandmother and the maternal grandfather are divorced.

The evidence also indicated that the mother has had difficulty maintaining a stable residence in Colorado. The mother moves frequently, often every six months or so, with the exception of a period of two-and-a-half years during which she lived with a boyfriend. The child visited Alabama for extended periods when the mother lived with that boyfriend.

The mother has been consistently employed, although she has changed jobs several times in the years since the child's birth. At the time the December 22, 2016, judgment was entered, the mother had been employed, and remained employed, by the same casino for at least two years.

The mother also acknowledged that the Colorado equivalent of the Department of Human Resources had investigated her on two occasions during the child's life. According to the mother, a neighbor was unhappy when she purchased the child two pet rats, and the neighbor contacted the child-protection agency. The mother stated that a social worker showed up unannounced and searched her home but that the social worker did not see a problem. On the other occasion, the mother left the child with her roommate, and the child went to a neighbor's house without the roommate's knowledge. The mother testified that, on that, occasion, a social worker questioned her but that the Colorado child-protection agency did not open an investigation with regard to that incident.

The father did not travel to Alabama to attend any of the court hearings. The mother testified that the father had been living in a "sober house," i.e., a transitional home for those leaving substance-abuse treatment, for approximately four years. The mother explained that the father liked the environment of the home and that he shared the home with a series of roommates.

The mother explained that the distance between Alabama and Colorado prevented frequent visits between the child and his grandparents, and, therefore, she allowed the child to visit in Alabama for extended periods. Much of the evidence presented during the dependency hearing focused on the periods when the mother allowed the child to visit or reside in Alabama. The record indicates that, from 2011 through 2014, the child spent several months at a time in Alabama. The child spent time living in the home of the maternal grandmother and in the home of the paternal grandparents, and the grandparents worked together to arrange visits between them during the periods when the child was in Alabama.

The paternal grandmother testified that, in response to a conversation she had with the father in March 2015, she traveled to Colorado to bring the child to Alabama. The mother testified that the paternal grandmother had wanted to take the child to a family reunion. On March 31, 2015, the paternal grandmother returned to Alabama with the child, and the child has remained in her home since that time.

After she returned to Alabama with the child, the paternal grandmother placed the child in day care while she worked. The child often visited the maternal grandmother, and he visited separately with the maternal grandfather.

The mother testified that she had planned for the child to visit family in Alabama from May through August 2015. The mother stated that, after the paternal grandmother took the child to Alabama on March 31, 2015, she decided to allow the child to remain in Alabama; she planned for the child to return to her home in Colorado as originally planned in August 2015. The mother explained that the child was to begin school in the fall of 2015, which would limit the time he could visit with his relatives in Alabama, and that, for that reason, she allowed the child to visit in Alabama at that time for a more extended period. In May 2015, the mother visited the child when the mother's sister traveled with the child to meet the mother in Las Vegas for a vacation.

The mother testified that she allowed the child to remain in Alabama and be enrolled in school here in August 2015 because, she said, at that time, she had recently suffered a miscarriage. The mother stated that she also ended her relationship with the father of the child she miscarried at that time and was in the process of moving to another home. The mother stated that the paternal grandmother offered to continue taking care of the child, and she stated that the paternal grandmother, the maternal grandmother, and she all agreed that it was better for the child to remain in Alabama at that time. The mother testified that she believed that that arrangement was to be short-term until she could become settled and that the paternal grandmother did not inform her that she was going to file the dependency action and seek custody of the child.

The paternal grandmother testified that the maternal grandmother told her in August 2015 that the mother was moving again and that she and the mother had decided that the child should remain in Alabama; the paternal grandmother stated that the period the child was to remain in Alabama was not specified. The maternal grandmother testified, however, that, at that time, she informed the paternal grandmother that the mother had suffered a miscarriage and had ended her relationship with her boyfriend and, therefore, that the mother needed to find another home. The paternal grandmother stated that she first learned of the mother's miscarriage in November 2015.

The mother testified that she did not become aware of the dependency action until late ...