J.P. v. D.P.

• Decision Date: 30 March 2018
• Docket Number: 2160706
• Citation: 260 So.3d 862
• Parties: J.P. v. D.P. and M.P.
• Court: Alabama Court of Civil Appeals

260 So.3d 862

J.P.

v.D.P. and M.P.

2160706

Court of Civil Appeals of Alabama.

March 30, 2018

Courtney Brown Dubberly, Homewood, for appellant.

Submitted on appellant’s brief only.

DONALDSON, Judge.

J.P. ("the father") appeals from a judgment of the Jefferson Juvenile Court, Bessemer Division ("the juvenile court"), finding the father's child, Ja.P. ("the minor child"), to be dependent, removing the minor child from the father's custody, and vesting custody of the minor child in M.P. ("the maternal aunt"). Before the father's fundamental constitutional right to the custody of the minor child could be deprived and transferred to a non-parent in these circumstances, the juvenile court must have been presented with clear and convincing evidence that the minor child was dependent. The evidence presented at the hearing held in this case does not support a finding that the minor child was dependent. Therefore, the juvenile court's judgment is due to be reversed and the cause remanded for further proceedings consistent with this opinion.

Facts and Procedural History

The maternal aunt and her husband, D.P. ("the maternal uncle") filed a petition in the Birmingham Division of the Jefferson Juvenile Court on August 15, 2016, seeking to have the minor child declared to be dependent. On September 20, 2016, the maternal aunt and uncle filed an amended petition. On October 5, 2016, the petition was transferred to the Bessemer Division of the Jefferson Juvenile Court because the father and the minor child resided there. A final hearing was held on February 27, 2017.

Testimony from the final hearing revealed the following pertinent facts. The father and the mother of the minor child had been married and had three children of the marriage: the minor child, age 10; a son who was approximately 19 years of age; and an older daughter, K.P., who was approximately 24 years of age. The testimony established that the father and the mother separated approximately 5 to 6 years before the filing of the dependency petition and that the minor child had lived with the mother after the separation. At the time of the hearing, the mother was deceased, allegedly as a result of acts by the son. Although it is not entirely clear from the record, it appears the mother died in 2016 shortly before the filing of the dependency petition. Immediately following the mother's death, the minor child spent one week with the maternal aunt and uncle. After that week, the father assumed custody of the minor child and moved the minor child to his residence. The father had been residing with his mother before the initiation of the dependency proceedings. At the time of the hearing, the minor child had been in the custody of the father since August 2016.

At the February 27, 2017, hearing, the juvenile court conducted an in camera examination of the minor child in which the attorneys for the parties were present. The minor child testified that she wished to live with the father but still be allowed visitation with the maternal aunt. The minor child stated that she, the father, the father's mother, the father's girlfriend, and the girlfriend's sons reside in the house where she lived. The minor child stated that the father's girlfriend resides in the house every day. The minor child stated that, although the father does get angry and scream, he will calm himself down. The minor child stated that, when the father screams, it is directed at the girlfriend's sons. The minor child testified that the father's girlfriend sleeps in one room with her sons and that she and the father share a bed in another room. The minor child testified that the father wakes her up in the mornings, prepares her breakfast, and prepares a lunch on the days she does not eat lunch at school. The minor child stated that she feels there is enough food to eat in the home and that she is provided an adequate amount of clothing to wear. The minor child testified that she felt safe at both the father's mother's home and the maternal aunt's home. The minor child stated that she wished to live with the father. When the minor child's guardian ad litem asked the minor child about a previous statement she had made indicating that she wished to live at the maternal aunt's home and why she had changed her mind, the minor child stated that she liked that there were other children to play with at the father's home and that there were not other children to play with outside at the maternal aunt's home.

The maternal aunt testified that she and the maternal uncle live in Alabaster and had been married for 13 years. The maternal aunt testified that they lived in a three-bedroom, two-bathroom house with a backyard. The maternal aunt testified that K.P. (the father's oldest child) lives with her and the maternal uncle. The maternal aunt testified that she was close with the minor child and had spent a significant amount of time with the minor child and the minor child's mother.

The maternal aunt testified that she believed the father to be angry and violent. The maternal aunt testified that she had seen the father punch walls, "tear furniture," and break a table; however, those incidents occurred approximately 15 years before the hearing. The maternal aunt testified that, several years before the hearing, she had also observed the father become physical with the mother and the son. The maternal aunt testified that she last witnessed an outburst of anger from the father in August 2016, after the death of the mother. The maternal aunt testified that the anger outburst did not result in the father's becoming physical with anyone present and was not directed at the minor child. The maternal aunt offered no testimony indicating that the father had ever abused the minor child. The maternal aunt also testified, over objection, that the mother had sought a protection-from-abuse order against the father at an unspecified time in the past. No evidence was provided regarding the details of any allegations the mother made when seeking a protection-from-abuse order or whether such an order was entered.

The maternal aunt testified that she was worried that the father would not be able to provide a stable home for the minor child or to transport the minor child to receive medical care and "things like that." The maternal aunt testified that the father had not had a steady income or a stable residence in the time that she had known him. The maternal aunt testified that the father has neither a reliable mode of transportation nor a driver's license. The maternal aunt testified that she had not seen the condition of the home where the father and the minor child were residing.

The maternal aunt testified that the father had not provided the primary care for his children while the mother was alive but that the father had visited the children often after the mother and the father separated. The maternal aunt testified that she continued to see the minor child after filing the dependency petition. The maternal aunt testified that the father knew that K.P. was bringing the minor child to the maternal aunt's home to visit. The maternal aunt also testified that she had visited with the minor child at her residence during the Thanksgiving and Christmas holidays in 2016. When questioned by the guardian ad litem, the maternal aunt testified, over objection from the father's counsel, that she was concerned about the mental health of the father and the father's mother and had been told that they each had a mental illness. No evidence was presented regarding the mental-health diagnosis of the father or the father's mother, nor was any evidence presented regarding the effect their mental health had on the minor child. The maternal aunt testified that she had offered to take the minor child to counseling following the mother's death, but had not been allowed to do so. No other evidence concerning the minor child's mental health was presented.

K.P., the older daughter, testified that she remained close with the minor child and saw her on the weekends. K.P. testified that, after the mother and the father separated, she did not see the father often. K.P. testified, however, that the father had seen the minor child approximately every other weekend after the separation. K.P. stated that, while she was living with the father and the mother, prior to the separation five to six years before the hearing, the father was frequently angry at the son and would become physically violent with the son. K.P. did not state how old the son was when these alleged actions occurred. K.P. testified that she once observed the father strike the minor child while the minor child was in a car seat and that that incident had occurred approximately eight years before the hearing. K.P. stated that the minor child was "really small" at the time. K.P. did not testify regarding any other details surrounding that incident. K.P. said that she had not witnessed the father striking the minor child since that time. K.P. stated that the police had been called to the home of the mother and the father multiple times during her childhood. K.P. stated that the last time she observed any altercation or "violence" from the father was approximately five years before the hearing. K.P.'s interaction with the father had been limited in the five years before the hearing.

K.P. testified about her routine when picking up the minor child for weekend visits after the mother's death. K.P. stated that, when she dropped the minor child off at the father's home, she would watch the minor child let herself into the home. K.P. testified that, because she did not speak to the father, she would not notify him of when she was dropping off the minor child. K.P. stated that there was one time when no one was present when she attempted to drop off the minor child at the father's home and that she waited with the minor child outside the home until someone arrived. K.P. testified that, in her opinion, the father could not...