S.L.M. v. S.C.

• Decision Date: 12 April 2013
• Docket Number: 2120004.
• Citation: 171 So.3d 656
• Parties: S.L.M. and R.S.M. v. S.C.
• Court: Alabama Court of Civil Appeals

171 So.3d 656

S.L.M. and R.S.M.

v.S.C.

2120004.

Court of Civil Appeals of Alabama.

April 12, 2013.

Opinion on Return to Remand Oct. 4, 2013.

Opinion on Overruling of Rehearing Feb. 14, 2014.

Christopher R. Garner of Burns, Burns & Garner, Gadsden, for appellants.

Jane V. Floyd of Floyd Law Firm, LLC, Gadsden, for appellee.

Opinion

DONALDSON, Judge.

S.L.M. and R.S.M. appeal the order of the Juvenile Court of Etowah County (“the trial court”) transferring custody of S.D.A. and R.D.A. (“the children”) to their maternal grandmother, S.C. (“the maternal grandmother”). On appeal, S.L.M. and R.S.M. argue that the trial court erred in finding the children to be dependent in their care, that the maternal grandmother failed to present sufficient evidence to meet the standard to justify a change of custody set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and that the trial court was without jurisdiction to modify prior orders placing the children in the custody of S.L.M. and R.S.M.

C.G. is the mother of the children. C.G. (“the mother”) gave birth to one other child before giving birth to the children at issue in this matter, and that child is in the custody of the maternal grandmother at her home in Waco, Kentucky. The mother has an extensive history of substance abuse, arrests, homelessness, prostitution, and incarceration. Testimony indicates that the mother tested positive for illegal drugs when she delivered each of her three children. The mother's former husband and the legally presumptive father of the children as a result of their marriage is deceased, and the whereabouts of the alleged biological father of the children have been unknown throughout these proceedings. S.L.M. and R.S.M. are a married couple, but neither S.L.M. nor R.S.M. are blood relatives of the children. S.L.M. testified that, when she and the mother were young, her mother and the mother's father briefly dated and that she and the mother have always considered each other “sisters.” S.L.M. assisted the mother occasionally over the years, and when the mother gave birth to S.D.A. in December 2010, S.L.M. agreed to accept custody of S.D.A. under a 90–day safety plan developed by the Etowah County Department of Human Resources (“DHR”). On March 15, 2011, S.L.M. filed a dependency petition as to S.D.A., and the trial court awarded S.L.M. “temporary legal custody” to S.D.A. on May 10, 2011; however, in its May 10 order, the trial court made no findings of fact or determination as to whether S.D.A. was a dependent child, and the order did not provide for any future proceedings regarding a determination of dependency as to S.D.A. or a final disposition of custody of S.D.A.

On October 11, 2011, the mother gave birth to R.D.A. On November 8, 2011, S.L.M. filed a dependency petition seeking temporary custody of R.D.A., and, that same day, the trial court adjudicated R.D.A. to be dependent and proceeded to conduct a dispositional hearing. The trial court awarded S.L.M. and R.S.M. custody of R.D.A., stating that “the case may be set for hearing upon petition of the mother.”

On May 30, 2012, the maternal grandmother filed a “Petition to Intervene and For Custody” in the action relating to each child. The petitions specifically allege that the children are dependent as to the mother and the biological father and acknowledged that the children might be in the temporary custody of S.L.M.; however, the petitions do not specifically allege that the children are dependent while in S.L.M.'s custody. The trial court held a hearing on the petitions and heard testimony ore tenus from all parties. No party objected to the proceedings, which were in the nature of a hearing as to the dependency of the children, not a custody-modification hearing. The trial court entered an order in both actions on August 21, 2012, finding:

“Upon consideration of the pleadings and proof ore tenus, it appears to the Court that the children were placed with [S.L.M. and R.S.M.] through a Safety Plan by the Department of Human Resources. The custody arrangement was made based on the fact that the mother informed DHR that [S.L.M.] was her sister and [S.L.M.] did nothing to refute that information. The mother and [S.L.M.] are not related. Custody was apparently determined based on that

misinformation.

“The [maternal grandmother] testified that she had tried, unsuccessfully, to find the location of the children and when that information was finally ascertained, she filed this petition for custody. The mother of the children and [S.L.M.] knew the location of the [maternal] grandmother, but did not attempt to inform her of the circumstances regarding the children.”

The trial court awarded custody of the children to the maternal grandmother, ordering supervised visitation with the mother and encouraging, but not ordering, visitation with S.L.M. and R.S.M. S.L.M. and R.S.M. moved the trial court to alter, amend, or vacate its order and moved for a new trial, and both motions were denied by operation of law. This timely appeal followed.¹

“ ‘Our standard of review of dependency determinations is well settled.

“ ‘ “A finding of dependency must be supported by clear and convincing evidence. § 12–15–65(f)[, Ala.Code 1975] ^[3] ; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court's ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep't of Human Res., 716 So.2d 219 (Ala.Civ.App.1998) ; G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App.1997) ; and J.M. v. State Dep't of Human Res., 686 So.2d 1253 (Ala.Civ.App.1996).”

“ ‘J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004)....’

“_______________

J.L. v. W.E., 64 So.3d 631, 634 (Ala.Civ.App.2010) (quoting L.A.C. v. T.S.C., 8 So.3d 322, 326–27 (Ala.Civ.App.2008) ).

“ ‘[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly [as clear and convincing is defined by § 25–5–81(c) ] establish the fact sought to be proved.’

“KGS Steel [,Inc. v. McInish ], 47 So.3d [749,] 761 [ (Ala.Civ.App.2006) ].

“... ‘[T]he judge must view the evidence presented through the prism of the substantive evidentiary burden’; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would ‘produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’ § 25–5–81(c).

“In reviewing a decision of the trial court, an appellate court is not permitted to reweigh the evidence, because weighing the evidence is solely a function of the trier of fact. However, it is the function of the appellate court to ascertain that the trial court's findings of fact are supported by substantial evidence with due regard to, and respect for, the appropriate level of evidentiary proof required, which in this case is clear and convincing.”

Ex parte McInish, 47 So.3d 767, 778 (Ala.2008).² See also § 12–15–310(b), Ala.Code 1975 (“If the juvenile court finds that the allegations in the petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition.”).

On appeal, S.L.M. and R.S.M. first argue that they are fit and proper legal custodians as to both children, and therefore, they assert, the children are not dependent children as defined in § 12–15–102(8), Ala.Code 1975.³ Specifically, S.L.M. and R.S.M. argue that the maternal grandmother must show that the children are dependent while in their custody, rather than as a result of the existing finding of dependency as to the mother, to warrant a change of custody. S.L.M. and R.S.M. next argue that the maternal grandmother failed to present sufficient evidence to meet the McLendon standard to warrant a change of custody. Specifically, S.L.M. and R.S.M. argue that the May 2011 and November 2011 orders as to S.D.A. and R.D.A., respectively, were final orders, as opposed to pendente lite orders, and that, therefore, the maternal grandmother must meet the McLendon standard in order to justify a change in custody. Third, S.L.M. and R.S.M. argue that the sufficiency of the prior custody orders was not properly before the trial court and that, therefore, the trial court was without authority to modify the prior orders absent evidence warranting a change of custody. Specifically, S.L.M. and R.S.M. argue that the prior custody orders could properly be attacked only by a motion under Rule 60(b), Ala. R. Civ. P., and that, because the maternal grandmother was not a party to the actions at the time the prior custody orders were entered, she lacked standing to bring such a motion.

As a threshold matter, we first note that none of the parties address the issue whether the children are dependent as to the mother or the alleged biological father. Further, although S.L.M. and R.S.M. argue that the maternal grandmother bore the burden at trial of proving that the children were dependent while in their custody, S.L.M. and R.S.M. made no objection at trial to the matter proceeding as either a dependency action or any other form of action.

In the original “custody order” entered in S.D.A.'s case on May 10, 2011, the trial court did not explicitly make a finding of dependency, despite the fact that the case originated from a dependency petition, but, nevertheless, it awarded “temporary legal care, custody, and control” of S.D.A. to S.L.M. Although the trial court's May 2011 “custody order” did not explicitly contain a finding of dependency as to...