J.L. v. W.E.

• Decision Date: 10 September 2010
• Docket Number: 2090210.
• Citation: 64 So.3d 631
• Parties: J.L.v.W.E. and S.E.
• Court: Alabama Court of Civil Appeals

64 So.3d 631

J.L.

v.W.E. and S.E.

2090210.

Court of Civil Appeals of Alabama.

July 23, 2010.Rehearing Denied Sept. 10, 2010.

Angie Slaten, Pell City, for appellant.Jonathan L. Adams, Talladega, for appellees.THOMPSON, Presiding Judge.

J.L. (“the father”) appeals from a judgment finding his child, L.L. (“the child”), dependent and awarding custody of the child to W.E. and S.E. (“the maternal grandparents”).

The record indicates the following. The father and R.L. (“the mother”) divorced within a year of the birth of the child, who was born in May 2007. The mother was awarded custody of the child, and the father was granted standard visitation. In November 2008, the mother gave birth to another child (“the sibling”). The father of the sibling lives with the mother and the child whose custody is at issue in this case. In January 2009, when the sibling was two months old, he was taken to a hospital in Talladega with a broken arm and respiratory problems; he was subsequently transferred to Children's Hospital in Birmingham. Medical staff stated that the injury to the sibling's arm could have been accidental, but the Talladega County Department of Human Resources (“DHR”) was notified of the injury. DHR was notified a month later that the sibling was hospitalized at Children's Hospital with what medical records described as a possibly life-threatening seizure, an intracranial hemorrhage, and 15 bone fractures “highly suggestive of nonaccidental trauma.” While the sibling remained hospitalized, the child, who showed no signs of injury, was removed from the mother's home and placed in foster care.

On February 11, 2009, DHR filed a petition in the Talladega Juvenile Court seeking custody of the child.¹ On February 13, 2009, after a shelter-care hearing, the juvenile court entered an order in which it determined that there was probable cause for finding the child dependent and awarded temporary custody of the child to DHR. At that time, the juvenile court ordered an evaluation of W.E., the maternal grandfather, for possible placement of the child.

On March 19, 2009, one week after learning that the child had been removed from the mother's custody, the father filed an action for custody of the child and sought an immediate hearing on the issue. In his pleading, the father stated that he had had no notice of the prior dependency proceedings. The juvenile court then ordered an evaluation of the father's home.

On April 7, 2009, the juvenile court held an evidentiary hearing, after which it placed the child in the home of the maternal grandparents.² On June 24, 2009, the maternal grandparents filed a petition seeking custody of the child. The father filed a counterpetition. On August 21, 2009, the juvenile court held an evidentiary hearing on the parties' petitions for custody. Evidence adduced at the trial tended to show the following.

Emily Milam, a DHR social worker involved in the child's case, testified that the father had been cooperative and compliant with DHR. He arrived for his visits with the child on time, and, Milam said, the father and the child had a good relationship. The maternal grandfather testified that the father appeared to be a good parent to the child. Milam testified that the father had declined parenting classes offered by DHR because the times and locations the classes were offered did not fit with his work schedule and because the father did not have a driver's license. Milam said she viewed the father's reasons for declining to enroll in the classes as good ones. Likewise, Milam said that she had discussed counseling with the father “in passing,” but she had not “pursue [d] it much.”

The father admitted to having been arrested twice for domestic violence. While he was married to the mother, he was arrested for domestic violence against the mother. Regarding that incident, the mother testified, she and the father had agreed to separate and that she would leave with the child. The day she was leaving, the mother said, the father changed his mind and said the mother could not leave. The mother testified that as she tried to go out through the front door, the father “[threw] her up the stairs by [her] hair.”

The father said that that case was placed on the Lincoln municipal court's administrative docket, and the father enrolled in what appears to be a court-ordered anger-management program. The father testified that he had completed the program at the time of the evidentiary hearing in this case. He also said that he still had to report to the program every other week for the next 18 weeks. He denied that he had been convicted of that charge in the municipal court. On the other hand, the mother testified that the father had been convicted and had been ordered to serve time in jail and to participate in the anger-management program.

The father admitted that he had been convicted on a charge of domestic violence against his own mother when he was 18 years old. The father's mother testified that the incident had occurred when she told the father to leave the house, he refused, and she shoved him. She was injured in the altercation. She said that the father called the police and that both she and the father were arrested.

Milam testified that the incidents of domestic violence, and a positive test indicating that the father had used marijuana, gave her cause for concern as to whether the father should obtain custody of the child. The father submitted to a number of drug tests while working with DHR and during the course of the litigation. The first test was positive for marijuana; the father requested a second test, the results of which were negative. The results of all other tests taken during the course of the litigation, including one taken at the request of the juvenile court at the conclusion of the hearing, were negative for illegal drugs.

At the time of the trial, the father was 29 years old and was living with his mother. The report on the evaluation DHR conducted on their home indicated that the home was “very clean,” safe, and had sufficient space for the child. The father worked during the day as a roofer; his mother worked at night at Honda. The father said that his mother and his sister would be able look after the child during the day while he worked.

The maternal grandparents had been married for 12 years at the time of the trial. The maternal grandfather, who was 50 years old, had worked for the Shelby County Commission for 20 years. He testified that he and his wife had the financial means to care for the child and added that the father had not contributed to the support of the child during the time the child had been in their custody. However, the record indicates that the father did pay the mother child support pursuant to the divorce judgment during the time the child was in the mother's custody.

The maternal grandmother, who was approximately 44 years old at the time of the trial, had taken a leave of absence from her job as an ophthalmic technician to care for the child full time. The child had her own room at their house. The DHR evaluation indicated that the maternal grandparents' home “was more than adequate” for a family and, like the home where the father lived with his mother, was very clean and safe. Milam testified that she had had the opportunity to observe the maternal grandparents with the child. The child and the maternal grandparents had bonded. The maternal grandparents had no reported incidents of domestic violence or use of illegal drugs.

On October 6, 2009, the juvenile court entered an order in which it found that the child was still dependent and that the mother and the father were unable to provide for the needs of the child. The juvenile court also noted that the father “ha[d] admitted to various acts of domestic violence.” Therefore, for the best interest of the child, the juvenile court ruled, custody was awarded to the maternal grandparents. The juvenile court awarded the father standard visitation. The father appeals.

The father contends that the juvenile court erred in finding the child dependent because, he says, such a finding is not supported by clear and convincing evidence.

“Our standard of review of dependency determinations is well settled.

“ ‘A finding of dependency must be supported by clear and convincing evidence. § 12–15–65(f)[, Ala.Code1975] ³; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court's ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep't of Human Res., 716 So.2d 219 (Ala.Civ.App.1998); G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App.1997); and J.M. v. State Dep't of Human Res., 686 So.2d 1253 (Ala.Civ.App.1996).’

“ J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004). This court has stated that clear and convincing evidence is “ ‘ “[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

“ ‘§ 6–11–20 [ (b) ](4), Ala.Code 1975.’

“ L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002).”

L.A.C. v. T.S.C., 8 So.3d 322, 326–27 (Ala.Civ.App.2008).

“We are not allowed to substitute our judgment for that of the trial court, even when this court might have reached a different result, unless the trial court's resolution of the facts is plainly and palpably wrong. L.R.M. v. D.M., 962 So.2d 864, 873–74 (Ala.Civ.App.2007) (citing Griggs v. Griggs, 638 So.2d 916, 918–19 (Ala.Civ.App.1994), quoting in turn Young v. Young, 376 So.2d...