J.J. v. J.H.W.

• Decision Date: 10 October 2008
• Docket Number: 2061197.,2070005.
• Parties: J.J. v. J.H.W. et al. C.S.S. and R.W.S. v. J.H.W. et al.
• Court: Alabama Court of Civil Appeals

27 So.3d 519

J.J. v. J.H.W. et al.

C.S.S. and R.W.S. v. J.H.W. et al.

2061197.

2070005.

Court of Civil Appeals of Alabama.

October 10, 2008.

Rehearing Applications Denied June 12, 2009.

Certiorari Denied September 14, 2009 Alabama Supreme Court 1081271.

Brent L. Callihan, Pelham, for appellant J.J.

Horace V. O'Neal, Jr., of Leo & O'Neal, Birmingham, for appellants C.S.S. and R.W.S.

Douglas L. Key and Foster D. Key of Key Greer Frawley Key & Harrison, Birmingham, for appellee J.H.W.

PITTMAN, Judge.

These appeals arise from a judgment entered in two related actions in the Shelby Juvenile Court denying petitions filed in April 2005 by C.S.S. and R.W.S. ("the maternal grandparents"), who are the maternal grandparents of T.S.W. and K.M.W. ("the children"), for termination of the parental rights of J.J. ("the mother") and J.H.W. ("the father") as to the children; determining the children to be dependent; and awarding custody of the children to the father subject to visitation by the maternal grandparents and the mother. Although the juvenile court initially entered an order transferring the cases to its counterpart in Jefferson County because a paternity action in Jefferson County involving the children and their parents had been litigated to a judgment, that transfer was not accepted, and the juvenile court implicitly reassumed jurisdiction (the children having been alleged in the termination petitions to be living at the maternal grandparents' residence located in Shelby County). The father then filed an answer and a counterclaim for pendente lite and permanent custody of the children, and the juvenile court subsequently awarded him pendente lite custody of the children.

In July 2006, after partially completing ore tenus proceedings, the juvenile court issued an order determining the children to be dependent, denying the maternal grandparents' requests to terminate the parental rights of the mother and the father, altering visitation pendente lite, and setting the case for the receipt of further testimony. In August 2007, after further hearings, the juvenile court entered a judgment confirming its previous determinations regarding dependency and denial of the termination petitions and awarding the father custody of the children. The juvenile court extended the following visitation privileges to the maternal grandparents: a 48-hour weekend each month, weekly telephone contact between the children and the grandparents for 30 minutes, 2 lunch periods each month at the children's school at which the grandparents would be entitled to be present, and visitation "at other times as may be agreed upon by the parties." As to the mother, the juvenile court found that the mother had relinquished her parental rights to her parents (i.e., the maternal grandparents) and had no maternal bond with the children; however, the mother was nonetheless authorized to visit with the children "during the dates and times [the] children are visiting with the [m]aternal [g]randparents." Although the juvenile court set a September 2007 hearing on certain motions of the parties concerning visitation matters, the August 2007 judgment indicates an intent to dispose of all other pending matters, and it expressly states that any party would have the right to appeal within 14 days. After the denial, pursuant to Rule 59.1, Ala. R. Civ. P., and Rule 1, Ala. R. Juv. P., of their postjudgment motions, the mother (case No. 2061197) and the maternal grandparents (case No. 2070005) filed notices of appeal; those appeals have been consolidated for review, and the juvenile court has certified the record on appeal as adequate for review by this court.

In these two appeals, the mother suggests that the judgment is not final, asserts that the award of custody to the father is erroneous, and contends that she should have been awarded visitation rights that are not dependent upon those of the maternal grandparents. The maternal grandparents, in their appeal, likewise suggest nonfinality and assert error in the award of custody to the father; they further contend that the juvenile court should have included, in its August 2007 judgment, standard language specified in the Alabama Parent-Child Relationship Protection Act, Ala.Code 1975, § 30-3-160 et seq. ("the APCRPA"). We will address the appellants' overlapping arguments regarding finality and error as to the custody award together, and we will then separately address those issues (i.e., the mother's visitation argument and the maternal grandparents' argument concerning the APCRPA) that are unique to each separate appeal.

The first issue raised by both the mother and by the maternal grandparents is whether the judgment under review is final. In its August 2007 judgment, the juvenile court determined that the children remained dependent, denied the maternal grandparents' request for termination of the parents' parental rights, and made a disposition of the children's custody. Under our caselaw, a formal determination by a juvenile court of a child's dependency coupled with an award of custody incident to that determination will give rise to an appealable final judgment even if the custody award is denominated as a "temporary" award and further review of the case is envisioned. See Potter v. State Dep't of Human Res., 511 So.2d 190, 192 (Ala.Civ. App.1986); see also C.L. v. D.H., 916 So.2d 622, 625-26 (Ala.Civ.App.2005). We thus reject the appellants' challenges to the finality of the judgment under review.

We next address the appellants' contention that the juvenile court erred in awarding custody of the children to the father incident to its determination that the children were dependent.¹ In Ex parte Alabama Department of Human Resources, 682 So.2d 459 (Ala.1996), the Alabama Supreme Court stated the applicable principles of appellate review in the context of a challenge to a juvenile court's custodial disposition of a dependent child:

"Appellate review is limited in cases where the evidence is presented to the trial court ore tenus. In a child custody case, an appellate court presumes the trial court's findings to be correct and will not reverse without proof of a clear abuse of discretion or plain error. Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App. 1991); J.S. v. D.S., 586 So.2d 944 (Ala. Civ.App.1991). This presumption is especially applicable where the evidence is conflicting. Ex Parte P.G.B., 600 So.2d 259, 261 (Ala.1992). An appellate court will not reverse the trial court's judgment based on the trial court's findings of fact unless the findings are so poorly supported by the evidence as to be plainly and palpably wrong. See Ex Parte Walters, 580 So.2d 1352 (Ala. 1991)."

682 So.2d at 460. The pertinent question is, therefore, whether the juvenile court's judgment awarding custody of the children to the father, rather than the maternal grandparents, is supported by the evidence when the evidence is viewed in a light most favorable to the judgment under review. See Whitt v. Whitt, 460 So.2d 1328, 1329 (Ala.Civ.App.1984); see also Russell v. Russell, 19 So.3d 879, 880 (Ala.Civ.App. 2008).

The record reveals that, in March 1996, the mother, while unmarried, gave birth to the two children whose custody is at issue. At the time, both the mother and the father were still enrolled in high school. In a subsequent proceeding to determine the paternity of the children, the father was found to be the children's biological father; was given certain visitation rights with the children; and was directed to pay $200 in monthly child support to the mother, who had continued to live with her parents (i.e., the maternal grandparents) after the birth of the children.

During the years immediately following the birth of the children, the father attended college in Tennessee and medical school in Alabama, ultimately becoming a medical doctor. Although disputed, there was testimony from the father and his parents (the paternal grandparents of the children) that the father had consistently exercised the twice-monthly weekend-visitation rights awarded him in the paternity judgment, with the exception of one weekend when the father was ill. Moreover, the father testified that, as required by the paternity judgment, he had paid child support throughout his enrollment in college and medical school.

Although the mother was awarded custody of the children in the paternity judgment, much of the actual care for the children was provided by the maternal grandparents for the first six years of their lives, after which the mother and the children moved from the maternal grandparents' home to a separate residence in Homewood. The mother married her current husband, D.J., in 2003, and the mother and her husband moved with the children to Lawrence County. However, during 2004, while the children were living with the mother and her husband, the husband began treating the children harshly; according to the mother, he administered immoderate corporal punishment and engaged in behavior that amounted to abuse of the children, such as shaking one of the children until he began urinating. In response to her husband's behavior towards the children, the mother sent the children back to the maternal grandparents' home to live and executed written documents in which she purported to grant her custodial rights to the maternal grandparents. The children subsequently lived with the maternal grandparents until August 2005, when the father was awarded pendente lite custody.

The father testified in the juvenile court that, upon the relocation of the children in 2004 to the maternal grandparents' home, the maternal grandparents had returned to the now eight-year-old children their former security objects (i.e., a blanket and a burp rag) from which they previously had been weaned by the mother. There was also evidence adduced at trial indicating that the maternal grandparents had come to the children's school to eat lunch with them one to...