MMS v. DW

• Citation: 735 So.2d 1230
• Parties: M.M.S. v. D.W. and R.W.
• Decision Date: 07 May 1999
• Court: Alabama Court of Civil Appeals

735 So.2d 1230

M.M.S. v. D.W. and R.W.

2971323.

Court of Civil Appeals of Alabama.

May 7, 1999.

Michael S. Ballard, Birmingham, for appellant.

James M. Kendrick, Birmingham, for appellee D.W. and R.W.

Lee Allen DuBois, guardian ad litem, Birmingham.

CRAWLEY, Judge.

M.M.S. (the mother) appeals the juvenile court's judgment adjudicating her 16-year-old son, D.M. (the child), dependent and placing him with her sister and brother-in-law, D.W. (the aunt) and R.W. (the uncle). The mother argues that this case is more in the nature of a custody case than a dependency case and that the Ex parte Terry¹ standard applies. We disagree. We have determined that this case is indeed a dependency case. Therefore, the juvenile court applied the correct standard and we affirm its judgment.

These family members have had a long history of close involvement with each other. The child was born in 1982. The mother had been married to the child's father, R.S. (the biological father), and the couple divorced around the time the child was born. By a provision in the divorce judgment, R.S.'s parental rights were "terminated" so that C.M. (the maternal grandfather) could adopt the child. In fact, the grandfather did adopt the child; however, the adoption was set aside shortly thereafter because the mother realized that the adoption would also terminate her parental rights.

From the time the child was two weeks old until he was approximately five years old, he and the mother resided in the grandfather's home. From the accounts of other family members, the grandfather and the grandmother were the parental figures in the child's life. The mother moved out of the home when the child was around five years old. She testified that the child moved from the grandparents' home to hers at that time; however, much of the testimony at trial indicated that the child continued to spend a majority of his time at the grandparents' home.

The major dispute at trial was over which of the family members took the most responsibility for the child. The aunt testified that she and the grandmother took on the primary responsibility of ensuring that the child had transportation to school and that she attended all of the child's extracurricular activities. According to the aunt and the child, the mother seldom attended the child's extracurricular activities, and, if she did attend, she arrived very late. The aunt and the mother also testified about the mother's "weather phobia," which, according to the aunt, at times prevented the mother from taking the child to, or picking him up from, school.

In August 1997, the grandfather died. The child did not take his grandfather's death well. The rest of the family also fared poorly after the grandfather's death, because control of his multimillion-dollar company became an issue. The grandfather left 40% of his company to the mother, 40% to the aunt, and 20% to the child. The mother alleges that the true impetus behind the aunt's petition is to gain control of the company, which the mother says the aunt wants sold. However, during the pendency of the dependency case, a conservatorship was being instituted to protect the child's interests in the company. As a safeguard, the juvenile court, in its order on the dependency petition, ordered that the aunt and uncle create a conservatorship to protect the child's inheritance.

During the grandfather's final illness and after his death, the child resided with his mother. In December 1997, the mother remarried I.R.S. (the stepfather), who, according to her family, had abused her both verbally and physically during their prior marriage. Around this same time, the child's grades fell, he became habitually truant, and his behavior at home worsened. He refused to attend the wedding of his mother and the stepfather. Quite simply, the child would not accept his mother's attempts to assert parental control over him; he would not do his homework, would not get up in a timely manner for school, and even became involved in vandalism.

The mother filed a "beyond control" petition against the child in January 1998, which resulted in a short-term placement of the child with his aunt and uncle. The mother successfully appealed² the finding of the referee in that case, and the child returned to the mother's home on May 4, 1998. The following day, the child ran away. On May 6, the mother again filed a petition in the family court, alleging that the child was a runaway, and she also filed a complaint alleging that the child had harassed her. The aunt and uncle filed a dependency petition on May 7. On May 11, the juvenile court awarded temporary custody of the child to his aunt and uncle.

In their petition, the aunt and uncle alleged, among other things, that the child was being physically, mentally, and emotionally abused by the mother and the stepfather and that the mother was failing to provide the child a means to get to school. The mother attempts to argue that the evidence at trial does not support the allegations made by the aunt and uncle, and, therefore, that the juvenile court could not find the child dependent. However, contrary to the mother's argument, the juvenile court can find a child dependent based upon grounds not asserted in the dependency petition. Martin v. State Dep't of Human Resources, 502 So.2d 769, 770 (Ala.Civ.App.1987) (stating that this court did not need to "find that the Department proved the specific grounds alleged in the petitions because we [found] that the juvenile court had other sufficient grounds for determining that the children are dependent.").

Ala.Code 1975, § 12-15-1(10)(m), provides that a child may be declared dependent if he is "for any other cause in need of the care and...