L.A.C. v. T.S.C.

• Decision Date: 07 November 2008
• Docket Number: 2070313.
• Parties: L.A.C. v. T.S.C. and St. Clair County Department of Human Resources.
• Court: Alabama Court of Civil Appeals

8 So.3d 322

L.A.C. v. T.S.C. and St. Clair County Department of Human Resources.

2070313.

Court of Civil Appeals of Alabama.

November 7, 2008.

S. Philip Bahakel and Donna J. Beaulieu of S. Philip Bahakel & Associates, Pelham, for appellant.

Submitted on appellant's brief only.

THOMPSON, Presiding Judge.

L.A.C. ("the mother") and T.S.C. ("the father") were married on December 5, 1998. Two children were born of the parties' marriage; the children had not yet reached the age of majority at the time of the final hearing in this matter. On August 23, 2007, the mother filed a complaint in the St. Clair Circuit Court ("the circuit court") seeking, among other things, a divorce from the father and custody of the parties' minor children. The father answered on September 13, 2007, and he counterclaimed for a divorce. The father also sought custody of the parties' two minor children.

On September 13, 2007, the father filed a motion for a temporary restraining order and a petition for pendente lite relief. The father requested that the circuit court enter an order preventing the mother from, among other things, harassing or intimidating him or committing acts of violence towards him, and he requested that the circuit court award him custody of the children. On September 14, 2007, the mother filed a petition for protection from abuse against the father based on, among other things, the father's alleged threats to injure her and her belief that the father might remove the children from the state. The circuit court subsequently entered an ex parte protection order protecting the mother from the father.

On November 2, 2007, the circuit court conducted a hearing in the parties' divorce action to resolve the issue of custody of the children. The record does not indicate whether the November 2, 2007, hearing was intended to resolve the issue of pendente lite custody of the children or whether it was intended to result in a final determination regarding custody of the children. While on the record, the circuit court expressed concern for the safety of the children, and it ordered from the bench that the St. Clair County Department of Human Resources ("DHR") take custody of the children. The record reveals that the circuit court took issue with the mother's living with a married man. The circuit court also expressed concern that the father might be abusing the prescription drug Xanax because of a positive drug test on November 2, 2007, and erratic behavior on the date of the hearing. The children were subsequently removed from the mother's and the father's custody. The circuit court did not enter a written order at that time.

After it orally ordered the children in DHR's custody, the circuit court did not enter an order in the record pursuant to Rule 58, Ala. R. Civ. P. The record reveals that the mother did not request that the circuit court enter an order pursuant to Rule 58 or file a petition for a writ of mandamus challenging the circuit court's decision to remove the children from the parties' custody.¹

On November 21, 2007, T.C. and B.C., the children's paternal grandparents, petitioned the circuit court seeking to intervene in the divorce action. In their petition, the paternal grandparents alleged that the parties' children were in DHR custody and that DHR had temporarily placed the children in their home. On November 21, 2007, the paternal grandparents also filed a petition for modification of custody, visitation, and support, asking, among other things, that the circuit court award them temporary custody of the children and order the parties to pay child support for the benefit of the children. On November 29, 2007, the circuit court granted the paternal grandparents' petition to intervene in the divorce action.

On November 21, 2007, the mother filed a petition for a writ of habeas corpus in the divorce action requesting that the children be returned to her custody. In her habeas petition, the mother contended, among other things, that the circuit court had not complied with § 12-15-60 and § 12-15-153, Ala.Code 1975, because it had failed to conduct a hearing within 72 hours after removing the children from her custody. Both § 12-15-60(a) and § 12-15-153 require a trial court to hold a hearing within 72 hours when a child is summarily removed from parental custody. K.S. v. G.A.B., 911 So.2d 1085, 1097 (Ala. Civ.App.2005). On December 20, 2007, the circuit court denied the mother's habeas petition.

On November 26, 2007, M.S., the children's maternal grandmother, filed dependency petitions in the St. Clair Juvenile Court ("the juvenile court") alleging that the children were dependent, thereby invoking the jurisdiction of the juvenile court. See § 12-15-30(a) and (b)(1), Ala. Code 1975 (a juvenile court has original jurisdiction in proceedings in which a child is alleged to be dependent and in proceedings to determine the custody of a child who is otherwise before the juvenile court). The dependency petitions were assigned case numbers JU-07-613 and JU-07-614. The record reveals that the same trial judge who presided over the divorce proceedings in the circuit court also presided over the dependency proceedings in the juvenile court.

On December 4, 2007, DHR filed a dependency petition in the juvenile court proceeding that had been initiated by the maternal grandmother, alleging that the children were in the care of DHR at that time due to their dependency. DHR requested, among other things, that the juvenile court declare the children to be dependent, award DHR temporary legal custody of the children, and conduct a 72-hour hearing on the petition. DHR included on the face of its dependency petition the case number assigned to the divorce action and the case numbers assigned to the pending juvenile actions.

On December 6, 2007, the trial judge, then sitting as a juvenile court judge, entered an order in the dependency proceedings finding the children to be dependent, finding "it would be in the best interest of [the] minor children for the legal custody of the minor children to be vested with ... DHR with discretion in planning and placement," and setting the matter for a hearing to be held on December 20, 2007. The juvenile court appointed a guardian ad litem for the minor children for the first time at that point in the proceedings. The December 6, 2007, order of the juvenile court was the only adjudication of dependency in this matter.

On December 17, 2007, the mother filed in the circuit court a postjudgment motion in which she purported to challenge the December 6, 2007, dependency order entered in the juvenile proceedings. On December 19, 2007, the children's maternal grandmother filed a motion in the circuit court to consolidate the two dependency actions pending in the juvenile court with the divorce action. On December 20, 2007, the maternal grandmother filed a motion in the circuit court to intervene in the divorce action. The trial judge, on December 20, 2007, granted the maternal grandmother's motion to intervene and the motion to consolidate the juvenile proceedings and the divorce action. Hereinafter, we refer to the trial judge, whether acting in his capacity as the circuit court judge or in his capacity as the juvenile court judge in these consolidated proceedings, as "the trial court."

Also, on December 20, 2007, the trial court denied the mother's postjudgment motion; at that point, the actions had been consolidated. The trial court also entered an order on December 20, 2007, requiring DHR to conduct home studies of the parents' respective homes, as well as of the homes of the paternal grandparents and the maternal grandmother, and awarding the father and the mother visitation with the children. On January 3, 2008, the mother timely filed a notice of appeal.

As an initial matter, we note that several of the issues raised by the mother on appeal challenge the trial court's authority with regard to its removal of custody of the children from the mother at the November 2, 2007, hearing. The mother contends, in one part of her brief submitted to this court, as she did in her petition for writ of habeas corpus, that the trial court erred by removing the children from her custody without notice, without entering a written order, and without conducting a hearing as required by §§ 12-15-151 through -153, Ala.Code 1975, and § 12-15-60(a), Ala.Code 1975. Given the nature of the mother's arguments pertaining to the November 2, 2007, removal of the children from her custody, we have elected to construe that part of her brief asserting those arguments as a challenge to the trial court's December 20, 2007, denial of her petition for a writ of habeas corpus; we treat those arguments as seeking review by a petition for a writ of mandamus. See Johnston v. Johnston, 440 So.2d 1112 (Ala. Civ.App.1983) (the denial of a writ of habeas corpus is interlocutory in nature and is reviewable by a petition for a writ of mandamus); see also Fowler v. Merkle, 564 So.2d 960 (Ala.Civ.App.1990) (an appellate court has discretion to treat an appeal as a petition for a writ of mandamus).

The record before this court reveals that at the time the trial court removed the children from the mother's custody at the conclusion of the November 2, 2007, hearing, no allegations of dependency had been made by any one. The trial court made no express finding at that time that the mother was unfit to have custody of the children. In order for a trial court to award custody to a nonparent, it must make an express determination that the parent is unfit. Ex parte Terry, 494 So.2d 628 (Ala. 1986). In Serio v. Serio, 3 So.3d 937 (Ala. Civ.App.2008), this court reversed a trial court's judgment awarding custody to a nonparent based on its failure to make an express determination of unfitness, stating:

"[T]he trial court did not make an express determination that the father was unfit or refer to the standard set out in Ex parte Terry,...