Leo v. A.L.
| Decision Date | 17 September 2010 |
| Docket Number | 1090565. |
| Citation | 61 So.3d 1042 |
| Parties | Ex parte L.E.O. and P.O.(In re L.E.O. and P.O.v.A.L. and J.I.P.). |
| Court | Alabama Supreme Court |
OPINION TEXT STARTS HERE
Joan-Marie Dean, Huntsville, for petitioners.Amber Yerkey James, Huntsville, for respondent J.I.P.PER CURIAM.
L.E.O. and P.O. (“the petitioners”) filed a petition in the Madison Juvenile Court (“the juvenile court”) seeking the custody of J.I.P., Jr., a now seven-year-old boy who has been living with them for several years (“the child”), and alleging that the child is a dependent child. The child's parents are J.I.P. (“the father”) and A.L. (“the mother”). The petitioners are not related to the child; he lives with them with the consent of the mother. After a proceeding at which it heard ore tenus evidence, the juvenile court held that the child was not dependent and dismissed the petition for lack of jurisdiction. The petitioners appealed. The Court of Civil Appeals affirmed the juvenile court's decision without an opinion; Judge Bryan dissented, with an opinion. We granted certiorari review to consider whether the Court of Civil Appeals' judgment conflicted with applicable caselaw. We conclude that it does, and we reverse the judgment.
I. Factual Background and Procedural History
The father and the mother married in 2002 in Huntsville. At that time, the father was a member of the United States Army and was stationed at Ft. Hood, Texas; the mother moved to Ft. Hood shortly after the marriage. The child was born in June 2003. From November 2003 until January 2004, the mother and the child stayed with the child's paternal grandmother in California while the father remained at Ft. Hood. The mother and the child returned to Ft. Hood in January 2004, and, when the father was deployed to Iraq in March 2004, the mother and the child returned to Huntsville. The petitioners, whose daughter had attended high school with the mother, began babysitting for the mother, and they befriended her and the child.
The petitioners say that while the father was on leave in October 2004, he took the child to California without the mother's knowledge and obtained a temporary-custody order there. The father returned to Iraq in November 2004, leaving the child in California with the paternal grandmother. The mother contested the custody proceedings in California and instituted divorce proceedings in the Madison Circuit Court (“the divorce court”). The California court determined that it did not have jurisdiction over the child, and in March 2005 the divorce court awarded custody of the child to the mother, and he was returned to Alabama. The petitioners paid the mother's legal bills related to those proceedings.
The father left the Army in August 2005 and returned to California. Also in August 2005, the divorce court held a pendente lite hearing at which the father appeared. The judge determined that the father had been guilty of domestic violence, ordered him to attend an anger-management program and a parenting class, required that his visitation with the child be supervised until he had completed those classes, and ordered him to pay child support in accordance with the child-support guidelines, Rule 32, Ala. R. Jud. Admin. L.E.O. brought the child to the office of the mother's attorney on the date of the pendente lite hearing in the divorce court so the father could visit with the child. At the time of the hearing in the juvenile court in December 2008, the father had not seen the child since the visit in 2005, although he had talked to the child on the telephone.
The final hearing in the father and mother's divorce case was held in June 2006. The father was notified of the hearing, but he did not attend. The final divorce judgment awarded custody of the child to the mother, suspended the father's visitation rights until he completed a parenting class, and ordered him to attend an anger-management program. The divorce court found that the father had not provided any support for the child or provided the information necessary for calculating a child-support obligation, but the divorce judgment did not contain any requirement that the father pay child support. That judgment was mailed to the father at the paternal grandmother's residence. The father denied receiving a copy but admitted that he was living with his mother at the address on file with the court when the judgment was entered and that he did not ever contact the court to obtain a copy of the judgment.
In the meantime, the petitioners' involvement with the child increased. The child progressed from occasionally spending the weekend with the petitioners to living with them on an ongoing basis. The petitioners provided for all the child's needs without financial support from either the mother or the father. In August 2007, the petitioners filed a petition in the juvenile court seeking custody of the child in which they alleged that he was dependent. The mother filed an answer admitting the allegations of the petition and consenting to the petitioners' obtaining custody of the child. She did not appear at any subsequent hearings in the juvenile court. In August 2008 the father was added as a party to the juvenile court proceedings, and it was ordered that he be served.
The petitioners contend that the father knew they were involved in the child's life in August 2005 when L.E.O. brought the child to visit with the father in the mother's attorney's office. The mother had told him that the petitioners were like grandparents to the child, but the father says that neither the mother nor the petitioners ever told him that the mother had allowed the child to begin living with the petitioners. Approximately three years before the final hearing in the juvenile court, the father telephoned P.O. to inquire about the child. The petitioners say that P.O. “offered to serve as a conduit for information and a receptacle for any gifts or support that the father [might] want to send” but that he never contacted her again. The father denies that P.O. made any such offer. The petitioners say they have had the same address and telephone numbers since the child began living with them. The father says he has also had the same address and telephone number since he left the Army and returned to California.
In August 2008, L.E.O. telephoned the father and left a message for him. The paternal grandmother returned the call, and L.E.O. told her that the child was living with the petitioners and that they had instituted custody proceedings in the juvenile court. In explaining why he had not seen the child from August 2005 until the hearing in the juvenile court in December 2008, the father testified that he had been trying to arrange for visitation through the mother but that she always had an excuse as to why he should not come to Alabama. The father also stated that the mother, the maternal grandmother, and the mother's friends had threatened him with physical violence if he came to Alabama. The father testified that he had offered to send the mother money for the child but that she would tell him she did not know her complete address. Then, he said, she would never call him back or answer his telephone calls. He said that the mother often changed her address and telephone number, which made it difficult for him to keep in touch with her. The father testified that, after he learned about the custody proceedings initiated in the juvenile court by the petitioners, he saved his money to be able to afford airplane tickets in order that he and the paternal grandmother could attend the hearing.
L.E.O. was 51 years old at the time of the hearing in the juvenile court. He and P.O. had been married for 29 years and have two adult daughters. L.E.O. had been employed as the manager of the service department for an automobile dealership after retiring from his former job as a police officer. He was unemployed at the time of the hearing because the dealership for which he worked had closed, but he anticipated no problems in finding another job in the automobile-service industry. P.O. works as a fifth-grade teacher at the school where the child attended kindergarten. The petitioners take the child to Sunday School and church and consider him a part of their family.
The father was 26 years old at the time of the hearing. He stated that, although he lived with his mother, he paid her rent, he was employed full time, and he attends college. He testified that he had investigated day-care arrangements for the child if they are needed and that he had confirmed that he could add the child to the health-care insurance coverage he receives as a former member of the military. The paternal grandmother testified that numerous family members lived nearby in California who were anxious to provide a support network for the father and the child. Both the father and the paternal grandmother testified that they love the child and want him to be a part of their lives but that the father's attempts to keep in touch with the child have been continuously thwarted by the mother. They also testified that they had no knowledge that the mother had relinquished custody of the child to the petitioners until the father was served with the summons in this case.
The juvenile court held that the child “is not a dependent child and this court lacks jurisdiction.” The juvenile court dismissed the petition on that basis. The Court of Civil Appeals affirmed the judgment of the juvenile court dismissing the petition, without an opinion. L.E.O. v. A.L., 61 So.3d 1041 (Ala.Civ.App.2009).
II. Analysis
Judge Bryan dissented from the Court of Civil Appeals' no-opinion affirmance. His dissent is based on his conclusion that the petitioners demonstrated that the juvenile court “was plainly or palpably wrong in concluding that the child ... was not a dependent child” under Alabama law. 61 So.3d at 1041. Specifically, Judge Bryan concluded that the petitioners had produced substantial evidence showing that ...
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