R.D. v. S.S.

CourtAlabama Court of Civil Appeals
PartiesR.D., Sr. v. S.S.
Docket Number2180650,2180651
Decision Date22 May 2020

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeals from Mobile Juvenile Court

(JU-12-733.01 and JU-12-733.02)

PER CURIAM.

In appeal number 2180650, R.D., Sr. ("the alleged father"), appeals from a final judgment entered by the Mobile Juvenile Court ("the juvenile court") in case number JU-12-733.01, a dependency action concerning R.D., Jr. ("the child"). In appeal number 2180651, the alleged father appeals from a final judgment entered by the juvenile court in case number JU-12-733.02, a custody action concerning the child. This court consolidated the appeals. We reverse the judgments and remand the cases for further proceedings consistent with this opinion.

Procedural Background

The child was born on November 4, 2011. On May 7, 2012, Ru.D. ("the alleged paternal grandmother") filed a complaint in the juvenile court, alleging that the child was dependent and requesting an award of his custody ("the dependency action"). The juvenile-court clerk assigned the dependency action case number JU-12-733.01. In the dependency action, the juvenile court awarded the alleged paternal grandmother pendente lite custody of the child. The alleged paternal grandmother eventually served summons and the complaint on S.S. ("the mother"); the mother's husband, L.G. ("the mother's husband"); and the alleged father.

On July 6, 2012, the mother's husband filed a motion to dismiss the dependency action, asserting, in pertinent part, that he had been married to the mother since February 19, 2003, that the child was born during the marriage, that he wasthe presumed father of the child, that he was "persist[ing] in the presumption of paternity," and that the child was not dependent because "there is a parent that ... can meet the needs of the child." On July 24, 2012, the juvenile court denied the motion to dismiss but entered an order providing that "[the mother's husband] is the presumed father by virtue of the marriage to the mother, and all parties are hereby so advised so that proper pleadings may be filed and appropriate burden of proof observed."

On August 21, 2012, the mother filed in the dependency action an affidavit of substantial hardship in which she moved the juvenile court to declare her indigent and to appoint counsel to represent her. The juvenile court granted the mother's motion. The mother did not file an answer or any other pleading in the dependency action.

On September 25, 2014, the mother filed a "petition for visitation" seeking not only visitation but also, as she later clarified, custody of the child ("the custody action"). The juvenile court treated that petition as a new complaint and assigned the petition case number JU-12-733.02. On February 5, 2015, the juvenile court granted the mother pendente litevisitation with the child, subject to the condition that the mother's husband have no contact with the child.

On December 29, 2014, the alleged father appeared in both the dependency action and the custody action, asserting his indigent status and requesting appointment of counsel. The juvenile court appointed counsel for the alleged father on January 5, 2015. On February 3, 2015, the alleged father filed a motion in both the dependency action and the custody action asserting, among other things, that he was the biological father of the child, that he had acknowledged his paternity of the child, and that he was requesting genetic testing to prove his paternity.1 The juvenile court granted the motion in both actions by ordering the child, the mother, and the alleged father to undergo testing within 30 days.

On May 28, 2015, the mother filed a motion in the dependency action asking the juvenile court to hold thealleged paternal grandmother in contempt for allegedly denying her visitation as required by the February 5, 2015, order. On July 1, 2015, the juvenile court entered an order in the dependency action stating that the mother's contempt motion would "be addressed at the trial."

On August 18, 2015, the juvenile court conducted a trial of both the dependency action and the custody action. At the commencement of the trial, the alleged father's attorney pointed out that the genetic testing ordered by the juvenile court had not occurred. The attorney for the mother's husband responded that the mother's husband still persisted in his paternity of the child, and the mother's husband stated that he wanted the mother to have custody of the child. The juvenile-court judge then orally stated:

"I'll dismiss [the alleged father] as a party. He'll have to wait outside as a witness, and that's -- that ends your lawyer, okay? He can always file a motion to reconsider, and we can do something else if somebody can find some law that changes what[,] to my understanding[,] is still the Alabama law is that[,] if you're married, then the father -- the husband is the presumed father, and he trumps all other rights. So I'll today dismiss as to [the alleged father]."

Following the trial, the juvenile-court judge orally indicated that he had determined that the child was dependent,that custody of the child should be awarded to the alleged paternal grandmother, that the mother and the mother's husband, which he characterized as the presumed and legal father of the child, should be required to pay child support to the alleged paternal grandmother, and that the mother should be permitted visitation with the child according to an agreement between the mother and the alleged paternal grandmother. However, the juvenile court did not enter a judgment in either action until May 26, 2017, when it entered substantively identical judgments in both the dependency action and the custody action providing, in pertinent part:

"The Court finds the child to be dependent and that the mother and [the mother's husband] are unable to discharge their responsibilities to and for the child. The Court finds that it is in the best interests of the child that custody of the child shall be awarded to [the alleged paternal grandmother].
"It is ORDERED, ADJUDGED, and DECREED by the Court that legal custody of [the child] is awarded to [the alleged paternal grandmother]....
"The Court awards no visitation at this time."

(Capitalization in original.) On May 30, 2017, the mother filed a postjudgment motion in both the dependency action and the custody action, arguing that the child was no longerdependent; those postjudgment motions were denied by operation of law on June 13, 2017, the 14th day after their filing. See Rule 1(B), Ala. R. Juv. P. The mother timely filed notices of appeal in both actions. The mother's husband did not appeal.

In S.S. v. R.D., 258 So. 3d 340 (Ala. Civ. App. 2018), this court determined that the mother had appealed from a nonfinal judgment in the dependency action, and we dismissed her appeal from the judgment entered in that action. Specifically, this court concluded that the juvenile court had not ruled on the mother's contempt motion, had not dismissed the alleged father as a party to the action, and had not adjudicated the paternity of the child. This court also reversed the judgment entered in the custody action and remanded the cause for the juvenile court to consider whether the child was currently dependent because, we said, 21 months had lapsed between the date of the trial and the entry of the judgment.

Upon this court's dismissal of the appeal in the dependency action and this court's reversal and remand in the custody action, the alleged father filed in both actions a renewed motion for genetic testing and a motion requesting thejuvenile court to adjudicate the paternity of the child. The mother filed a response to the motions in which she asserted that the mother's husband had previously indicated that he was persisting in his status as the presumed father of the child and that the juvenile court should honor his previous statement by dismissing the alleged father as a party in both actions and denying his requests for genetic testing and an adjudication of paternity. On February 10, 2019, the alleged father filed a response in both actions, asserting that the mother's husband was not the biological father of the child, that the mother's husband had never supported or otherwise acted as a father to the child, that the mother's husband was not persisting in his status as the presumed father of the child, that the alleged father was also a presumed father of the child, and that the alleged father was maintaining his request for genetic testing and an adjudication of his paternity of the child. On February 10, 2019, the alleged father filed a motion requesting an evidentiary hearing to contest the assertion that the mother's husband was persisting in his status as the presumed father of the child and to prove his own status as a presumed father of the child who should beadjudicated the legal father of the child. The mother's husband did not appear in the proceedings after the issuance of our opinion in S.S. v. R.D.

On March 21, 2019, the juvenile court conducted a second trial in both the dependency action and the custody action. At the commencement of the trial, the juvenile-court judge determined from questioning the attorneys and the mother that the child had been born during the marriage between the mother and the mother's husband and that no father had been identified on the birth certificate of the child. The juvenile-court judge then stated:

"I've got a pending motion about DNA testing for [the alleged father]. The problem, is, in the past -- even though I -- I don't have anybody
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT