A.R. v. T.R.

• Decision Date: 04 November 2022
• Docket Number: CL-2022-0635
• Parties: A.R. v. T.R.
• Court: Alabama Court of Civil Appeals

A.R. v. T.R.

No. CL-2022-0635

Alabama Court of Civil Appeals

November 4, 2022

Appeal from Limestone Juvenile Court (JU-19-275.01)

MOORE JUDGE

A.R ("the mother") appeals from an April 28, 2022 judgment entered by the Limestone Juvenile Court ("the juvenile court") finding B.H. ("the child") dependent and awarding custody of the child to the child's maternal grandfather, T.R. ("the maternal grandfather"). We dismiss the appeal in part and affirm the juvenile court's judgment.

Procedural History

These parties have previously been before this court. See A.R v. J.C.R., [Ms. 2200903, Jan. 14, 2022]___ So. 3d___ (Ala. Civ. App. 2022). In A.R., this court set forth the procedural history in this matter as follows:

"On November 22, 2019, the child's maternal great-grandmother, J.C.R. ('the maternal great-grandmother'), filed a petition alleging that the child was dependent. At the 72hour hearing, see Ala. Code 1975, § 12-15-308, the mother failed to appear, and the juvenile court awarded the maternal great-grandmother temporary custody of the child. After a trial on the dependency petition, the juvenile court entered a judgment on October 20, 2020, stating that the mother had stipulated that the child was dependent, adjudicating the child dependent, and awarding temporary legal and physical custody of the child to the maternal great-grandmother and the maternal grandfather.

"On August 6, 2021, the juvenile court held a 'permanency' hearing, at which only the child's guardian ad litem testified. The mother appeared after the presentation of the evidence was completed. During the hearing, the juvenile court made it clear that, because there had been an earlier stipulation of dependency, the only issue to be considered at the hearing was 'the appropriate permanent location or custody arrangement for [the] child.' The juvenile court subsequently entered a judgment on August 9, 2021, stating, in pertinent part:

"'The Court having previously found the child to be a dependent child set a Permanency hearing for this date. ...

" '....

"'The Guardian ad Litem waived the child's presence in the courtroom, but informed the court that the child was nearby if needed for [the] hearing. The mother was not present. The court found that she waived her presence. The mother appeared for court after the close of testimony and evidence.

"'After having carefully considered the sworn testimony and evidence submitted, it is ORDERED that the permanent legal and physical custody of the ... child be awarded to the maternal grandfather. ... Visitation with the mother shall be at times and places within the discretion of the [maternal grandfather] taking into consideration the wishes of the ... child.'

"(Capitalization in original.) On August 10, 2021, the mother filed her notice of appeal.¹

"

"¹Although permanent custody of the child was awarded to the maternal grandfather, the mother identified the maternal great-grandmother as the appellee in the notice of appeal. This court subsequently entered an order directing the mother to immediately file an amended notice of appeal naming the maternal grandfather as an appellee and to serve on the maternal grandfather a copy of the amended notice of appeal, the appellant's brief filed by the mother, and the appellee's brief filed by the maternal great-grandmother. This court's order also gave the maternal grandfather 21 days from the date the amended notice of appeal was filed to file any objection he might have to the amendment. The order also gave the maternal grandfather 42 days from the date included on the mother's amended certificate of service to file an appellee's brief. The maternal grandfather did not file an objection to the amended notice of appeal or an appellee's brief."

___So. 3d at___ .

On appeal, this court addressed whether sufficient evidence had been produced from which the juvenile court could have been clearly convinced that the child was dependent. We noted that, in finding the child dependent, the juvenile court had relied on a stipulation of dependency that had occurred almost one year before the August 6, 2021, dispositional hearing. We also noted that a written finding of dependency is not required when the dependency finding can be inferred from the judgment at issue, but we concluded that

"the juvenile court's statements at the August 6, 2021, hearing indicating that it was considering the disposition of the child only because of the previous stipulation of dependency, coupled with the language of the judgment indicating that it was relying on that previous finding of dependency, ma[de] it impossible to infer that the juvenile court found the child dependent at the time of the custodial disposition."

___So. 3d at___ . Thus, we held that, "[b]ecause the juvenile court [had] failed to find that the child was dependent at the time of the custodial disposition, it [had] lacked jurisdiction to determine the disposition of the child," and we reversed the juvenile court's August 9, 2021, judgment and remanded the case with instructions that the juvenile court vacate that judgment. ___So. 3d at___ . We instructed the juvenile court that, on remand, it could, if needed, take additional evidence to determine if the child is dependent before making a custodial disposition. ___So. 3d at___ .

On remand, the juvenile court entered a final judgment on April 28, 2022, in which it determined that the child "remains a dependent child pursuant to Section 12-15-102(8)(a), Code of Alabama (1975), and is within the jurisdiction of the [juvenile] court," awarded custody of the child to the maternal grandfather, and ordered that visitation between the mother and the child "shall be at times and places within the discretion of [the maternal grandfather], taking into consideration the wishes of the ... child." The juvenile court, however, made no specific findings of fact in its judgment. The mother did not file a postjudgment motion. On May 3, 2022, the mother filed a timely notice of appeal to this court. On May 5, 2022, the juvenile court entered an amended judgment purporting to provide a more definitive visitation schedule between the mother and the child.

Analysis

The mother raises two issues on appeal -- whether the determination in the final judgment that the child remained dependent is supported by clear and convincing evidence and whether the juvenile erred in giving the maternal grandfather discretion over her visitation with the child.

The mother did not preserve the first issue for appellate review. New Properties, L.L.C. v. Stewart, 905 So.2d 797 801-02 (Ala. 2004), holds that, based on Rule 52(b), Ala. R. Civ. P., "in a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review." Rule 52(b) applies in juvenile-court cases. See Rule 1(A), Ala. R. Juv. P. ("If no procedure is specifically provided in these Rules or by statute, the Alabama Rules of Civil Procedure shall be applicable to those matters that are considered civil in nature ...."). In K.M. v. S.R., 326 So.3d 1062, 1063 (Ala. Civ. App. 2020), this court, relying on Stewart, held that, when a juvenile court makes the legal determination in a final judgment that a child is dependent, without further specifying the factual grounds for that determination, a party claiming that the dependency determination is not supported by sufficient evidence must file a postjudgment motion raising that issue to the juvenile court in order to preserve the issue for appellate review.

In this case, the juvenile court determined only that the child was "dependent" as that term is defined in Ala. Code 1975, § 12-15-102(8)a., which contains eight alternative grounds for finding a child dependent, without specifying the factual basis for its determination. The record contains no explanation from the juvenile court as to how it reached its determination. Cf. Weeks v. Herlong, 951 So.2d 670, 678 (Ala. 2006) (holding that dialogue between counsel and trial judge that revealed reasoning behind factual determination sufficed as specific finding of fact preserving issue of sufficiency of evidence for appellate review). Because the mother did not challenge in a postjudgment motion the sufficiency of the evidence with respect to the determination of dependency, we cannot consider the mother's argument on this issue.

Before proceeding to the...