JAP v. MM

• Decision Date: 08 August 2003
• Parties: J.A.P. v. M.M.
• Court: Alabama Court of Civil Appeals

872 So.2d 861

J.A.P. v. M.M.

2020431.

Court of Civil Appeals of Alabama.

August 8, 2003.

J. Earl Smith, Dothan, for appellant.

J. Christopher Capps, Dothan, for appellee.

Derek E. Yarbrough of Motley, Motley & Yarbrough, LLC, Dothan, for amicus curiae L.W.A., the natural father.

THOMPSON, Judge.

On December 7, 2001, J.A.P., f/k/a J.M.A. ("the mother"), filed a complaint in the Houston County Circuit Court (hereinafter "the trial court") seeking a divorce from L.W.A. One child, J.B.K.A. ("the son"), was born of that marriage. The mother also had a child, C.M.W. ("the daughter"), from a previous marriage. At the time of the trial court's hearing in this matter, the daughter was 15 years old and the son was 9 years old.

The testimony presented during the course of this matter indicates that at approximately the same time the mother filed her complaint for a divorce, L.W.A. and the mother's mother, M.M. (hereinafter "the maternal grandmother"), filed an action in the Houston County Juvenile Court (hereinafter "the juvenile court") seeking to have the daughter declared dependent. Although the transcript of that proceeding is not currently before this court, the juvenile court apparently declared the daughter dependent and awarded custody of the daughter to the maternal grandmother. On December 12, 2001, the trial court awarded pendente lite custody of the son to the maternal grandmother.¹

On April 12, 2002, the children's guardian ad litem, who was apparently appointed by the juvenile court, filed a motion seeking to transfer that part of the divorce action pertaining to the custody of the son to the juvenile court. The mother and L.W.A. did not oppose that motion, and the trial court granted the motion.

The juvenile court conducted a hearing, and on August 27, 2002, it entered separate judgments finding both children to be dependent and awarding custody of the children to the maternal grandmother. The mother timely appealed the judgment pertaining to the son to the trial court.² The trial court conducted an ore tenus hearing. The mother's testimony at that hearing indicates that in November 2002 the trial court had entered an order pertaining to all the issues related to the mother and L.W.A.'s divorce except custody. On February 4, 2003, the trial court entered two separate judgments finding the two children dependent and awarding custody of the children to the maternal grandmother.

The mother appealed to this court, again only as to the judgment pertaining to the son, raising several issues. We note that one of the issues the mother raises before this court pertains to visitation orders the trial court entered after the mother had filed her notice of appeal from the February 4, 2003, judgment. The mother has not appealed from those orders, and this court does not consider the arguments in her brief that pertain to those orders. We also note that L.W.A. has not appealed from the trial court's custody judgment, and, therefore, he is not a party to this appeal. However, L.W.A. has filed an amicus curiae brief in this court in which he advocates the affirmance of the trial court's judgment awarding custody of the son to the maternal grandmother.

A detailed recitation of the facts of this case and the accusations the various family members have made against each other would serve no useful purpose. Suffice it to say that the family members involved in this matter have very tumultuous relationships. The mother and maternal grandmother have feuded for years, and, according to the mother, the maternal grandmother became a part of the children's lives only months before the mother filed her December 2001 divorce complaint. It appears from the record that immediately after the mother filed her divorce complaint, L.W.A. and the maternal grandmother hid the children from the mother until the maternal grandmother and L.W.A. had initiated the juvenile court proceedings.

Also during the months leading up to the mother's filing her complaint for divorce from L.W.A., the relationship between the mother and the daughter deteriorated. For various reasons, the daughter sided with L.W.A. when the mother sought a divorce from him. The daughter testified that the mother left the home she shared with L.W.A. and the children approximately six months before she filed her complaint for a divorce from L.W.A. The mother denied that accusation; also, L.W.A. reported to one of the medical experts that he and the mother had been separated since approximately the time the divorce action was filed. The daughter testified at the hearing before the trial court that she wanted to live with the grandmother, and the mother stated that she did not believe her relationship with the daughter could be repaired.

The mother stated that she believed that the maternal grandmother and L.W.A. had conspired against her and that they had influenced the children against her. There was evidence presented at the hearing before the trial court that the maternal grandmother and the daughter had attempted to persuade a law-enforcement officer to arrest the mother for possession of illegal drugs. The law-enforcement officer testified that because of the insistence of the maternal grandmother and the daughter that drugs would be present in the mother's vehicle, he suspected that they were trying to "set up" the mother, and he refused to take part in the alleged scheme.

L.W.A. apparently filed a petition in the juvenile court seeking custody of the son, but he did not present any evidence at the trial court's hearing in this matter. At the time of the trial court's hearing, L.W.A. was living in a "travel trailer," and he admitted that he did not have adequate housing in which to raise a child.

The maternal grandmother has allowed the mother to visit the children only under the terms of the court orders allowing the mother visitation. The maternal grandmother objected when the mother visited the son at his school. However, the maternal grandmother has allowed L.W.A. and the daughter's biological father to visit the children frequently.

The mother's conduct with regard to the daughter has been less than exemplary. She has consistently accused the child of lying throughout the litigation of this matter. Much of the mother's testimony at the hearing was aimed at demonstrating that the daughter had been untruthful with regard to some of her testimony before the juvenile court. The trial court cut the mother's presentation of evidence short because, after repeated warnings from the trial court, the mother's attorney, in the words of the trial court, continued to "badger" the daughter during her testimony.

Very little of the evidence at the hearing before the trial court actually pertained to the son or to the abilities of the mother, the maternal grandmother, or L.W.A. to care for the son. The mother testified that since the son began living with the maternal grandmother, his attitude toward the mother had changed and that he often cursed. She stated that the son often did not want to return to the maternal grandmother's home after his visitation with the mother.

The parties presented two expert witnesses who performed psychological evaluations on the mother, L.W.A., the maternal grandmother, and each of the children. None of those evaluations revealed any psychological problems that would prevent any of the adults from properly parenting the children, and those evaluations did not reveal any significant problems with either of the children.

The testimony at the hearing before the trial court established that the children have a close relationship with each other. The daughter has apparently always been very involved in caring for the son, and she testified that she did not want to be separated from the son. One of the medical experts testified that it would be best not to separate the daughter and the son. The son was not offered as a witness before the trial court. In its judgment, the trial court found, in pertinent part, as follows:

"The mother and [the daughter] are so estranged from each other that it would not be in the best interest of either of the children to be placed with [the] mother. Both children are very close and should not be separated. The Court finds that the two minor children are dependent under Juvenile Court considerations. The children are happy and well adjusted with [the maternal grandmother]. Forcing them to return to [the] mother would not be of any benefit of any party, particularly in light of the history of litigation in this case. Therefore, custody is transferred to the maternal grandmother, subject to prior visitation arrangements and restrictions ordered previously in the Juvenile Court."

The trial court did not make any finding that the mother was unfit to have custody of the children.

The mother contends on appeal that the trial court erred in finding the son dependent and in awarding custody of the son to the maternal grandmother by utilizing the "best interests" standard applicable in the dispositional phase of a dependency proceeding. See S.T.S. v. C.T., 746 So.2d 1017 (Ala.Civ.App.1999) (the "best interests" standard is applied in determining the disposition or placement of a child after a court's finding that the child is dependent). The mother argues that, as between herself and the maternal grandmother, this matter is a custody dispute to which the standard set forth in Ex parte Terry, 494 So.2d 628 (Ala.1986), applies. Under the holding of Ex parte Terry, because there is a presumption that a child's best interests are served by being in the custody of his or her parent, in order to award custody to a nonparent such as the maternal grandmother, a court must determine that the parent is unfit to have custody.

The Alabama Legislature has defined a "dependent child" as a child:

"a. Who, for any reason is destitute, homeless, or dependent on the public for support; or

"b. Who is without a parent or

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