P.S.R. v. C.L.P.

• Decision Date: 28 January 2011
• Docket Number: 2091118 and 2091119.
• Citation: 67 So.3d 917
• Parties: P.S.R.v.C.L.P.
• Court: Alabama Court of Civil Appeals

67 So.3d 917

P.S.R.

v.C.L.P.

2091118 and 2091119.

Court of Civil Appeals of Alabama.

Jan. 28, 2011.

Lindsey Mussleman Davis of Holt, Mussleman, Kelly & Morgan, Florence, for appellant.

Jeffrey L. Bowling of Bedford, Rogers & Bowling, P.C., Russellville, for appellee.MOORE, Judge.

P.S.R., the paternal grandmother of A.P.P. and Cy.L.P. (“the children”), appeals from a judgment of the Franklin Juvenile Court (“the juvenile court”) that dismissed the dependency petitions she had filed in the juvenile court relating to the children. We reverse.

Procedural History

On February 2, 2010, P.S.R. (“the grandmother”) filed an emergency petition for temporary custody in the Franklin Circuit Court (“the circuit court”) in case number DR–04–189.02, alleging:

“1. On or about August 27, 2008, this Honorable Court issued an order awarding custody of the minor children ... to the father, J.M.P., (‘the father’) during the school year. [C.L.P. (‘the mother’) ] was awarded custody during the summer months and at other various times, including holidays.

“2. There has been a material change in circumstances since the last order of the Court. The mother has failed and refused to exercise her visitation rights with the minor children and has not spoken or visited with the children in over two years. Her current whereabouts are unknown and she was last thought to be living in Gainesville, Florida. It is further alleged that the mother is addicted to drugs and has criminal charges pending against her in the State of Florida.

“3. The father ... died on January 29, 2010. At the time of his death, he maintained custody of the children and [the grandmother] assisted with the raising of the minor children.

“4. The children are enrolled in school at Phil Campbell and it would be in their best interest for custody to be awarded to the [grandmother]. The children are mourning the death of their father and it would be in their best interest and the least disruptive for them to remain in the care, custody and control of the [grandmother]. They have a very close relationship with the [grandmother] and are in a familiar setting surrounded by family and friends.

“WHEREFORE, the premises considered, [the grandmother] prays that this Honorable Court will enter a temporary order granting custody of the minor children to the [grandmother].”

On February 4, 2010, the circuit court awarded the grandmother pendente lite custody of the children. On May 24, 2010, C.L.P. (“the mother”) filed an answer to the grandmother's petition. On July 7, 2010, the circuit court entered an order stating:

“The [mother] has made an oral motion to dismiss this petition based on the [grandmother's] lack of standing to file a custody petition in this case. Upon consideration, it is hereby ordered that this case is dismissed. The [grandmother] must file a dependency petition and meet the burden of proof as set out by the Code of Alabama.”

On July 12, 2010, the grandmother filed in the circuit court a motion to reinstate the case based upon a settlement agreement reached between the parties. That agreement apparently provided that the grandmother should be allowed visitation with the children.

On July 14, 2010, before the circuit court could rule on the motion to reinstate, the grandmother filed two separate petitions in the juvenile court, alleging that the children were dependent and requesting that the juvenile court award the grandmother the immediate custody of the children. ¹ Specifically, the petitions stated:

“Comes now the [grandmother] ... and moves the court for an order granting pendente lite (immediate) emergency custody of the minor child described herein. As a basis for said motion, the undersigned shows unto the court as follows:

“1. This is a dependency proceeding pursuant to Alabama Code Sec. 12–15–101 et seq. The child is ‘dependent’ within the meaning of Alabama Code Sec. 12–15–102(8). This court has jurisdiction in this proceeding pursuant to Alabama Code Sec. 12–15–103 to hear this proceeding. [The grandmother] avers that the minor child is dependent and that the mother is not a fit and proper party to have the care, custody and control of said minor child.

“....

“3. The father of said child was [J.M.P. (‘the father’) ]. On January 29, 2010, [the father] passed away.

“4. Previously, in 2005, [the father] and [the mother] were divorced in Franklin County, Alabama. In the original divorce, temporary custody of the minor child was vested in the maternal grandmother for a period of one year. At the end of one year, the [mother and the father] began sharing joint physical and legal custody of said child, alternating weeks of custody. An order incorporating these agreements is reflected in Franklin County Circuit Court cases, DR 04–189.00 and DR 04–189.01.

“In 2007, the [mother and the father] were to share custody on a week to week basis. However, shortly after said order was entered, the mother basically abandoned the child[ ] and left [her] with the father. For a period of three years, she had little or no contact with the child[ ] and did not exercise any custody rights. During this time, the child was with the father or with the paternal grandmother who exercised primary physical custody and care of the minor child.

“5. At the time of the father's death, the whereabouts of the mother were difficult to ascertain and could not be found. The paternal grandmother filed a petition for custody in the domestic relations case and service by publication was had upon the mother. The mother did file an answer and contested the jurisdiction of the court in that the grandmother was not a party to the divorce. Said case was dismissed on July 7, 2010.

“6. [The grandmother] avers that the minor child is dependent and that the mother is not a fit and proper party to have the care, custody and control of said minor child. Specifically, the mother has not been supportive of the minor child, has had numerous criminal offenses since 2007 including, but not limited to assault, burglary, possession of narcotic equipment and bad check charges. These appear to have occurred for the most part in the state of Florida. The mother has consistently had a substance abuse problem which has not been treated and continues to impede her ability to properly parent the minor child.

“7. The [grandmother] avers that she has and will continue to provide a loving and nurturing home for the minor child[ ]. [The grandmother] is fully capable of continuing to exercise custody of the minor child and to provide her a loving [and] stable home environment, something that the [grandmother] avers the mother cannot provide.

“8. The [grandmother] avers that after the issuance of the order on July 7, 2010, the mother has taken the child and left the jurisdiction of Alabama. It will be necessary that service, once again, be had upon the mother and that this court will need to set a hearing to require the mother to return the child to Alabama for disposition in this case.

“WHEREFORE, [the grandmother] prays as follows:

“(A) That this court will take jurisdiction of this matter, and upon consideration hereof will issue an order directing that immediate temporary custody of the minor child be vested in the paternal grandmother ... and that visitation be had by the mother under such terms and conditions as the court deems appropriate;

“(B) That upon final hearing in this cause, that legal and physical custody will be vested in [the grandmother] who has been the custodial party for the minor child during the vast majority of her life;

“(C) That Your Honor will direct that such other orders as the court deems appropriate and in these premises [the grandmother] has shown herself to be entitled, including issues of child visitation and child support.”

Subsequently, on July 15, 2010, the circuit court entered an order granting the grandmother's motion to reinstate case number DR–04–189.02 to the circuit court's active docket. In that order, the circuit court adopted the visitation agreement of the parties and awarded the grandmother specified visitation with the children. The order did not address the grandmother's prior custody petition that had been dismissed.

On July 30, 2010, the juvenile-court judge that was initially assigned to the dependency cases entered an order recusing herself from presiding over the cases; that order stated, in pertinent part, “that the [Juvenile] Judge would not be able to maintain objectivity in that the [grandmother was] represented by the law firm of the Judge's spouse in [the] Circuit Court case over the same issues,” and the juvenile-court judge requested that “the Administrative Office of Courts arrange the appointment of another Judge to preside in this cause should the presiding Circuit Judge be unable to sit in this matter.” Although the juvenile court's case-action-summary sheets do not reflect that the cases were transferred to another judge, on August 6, 2010, the circuit judge of Franklin County, the same judge that had presided over the circuit-court action, entered the following judgment in the dependency actions:

“The Court has reviewed the Petition[s] for Dependency in these cases. The Court is aware of the parties through case number DR–04–189.02. The petition [s] do[ ] not set the procedural history of DR–04–189 correctly.

“It is indeed true that the Court dismissed DR–04–189.02 on July 7, 2010. However, on July 12[sic], 2010, the Court granted a motion by [the grandmother's] attorney to reinstate that case. Both parties stood before the Court on July 8, 2010, and had their attorney recite an agreement between the parties to allow [the grandmother] to have grandparent visitation. [The grandmother] stated affirmatively on the record that she wished the Court to accept this agreement. The Court granted the Motion to Reinstate so that a formal written agreement could be submitted to the Court evidencing this agreement.

“Both [dependency petitions]...