S.P. v. E.T.

• Decision Date: 30 December 2005
• Docket Number: 2040044.
• Citation: 957 So.2d 1127
• Parties: S.P. v. E.T., V.T., and State Department of Human Resources.
• Court: Alabama Court of Civil Appeals

957 So.2d 1127

S.P. v. E.T., V.T., and State Department of Human Resources.

2040044.

Court of Civil Appeals of Alabama.

December 30, 2005.

Rehearing Denied June 16, 2006.

Certiorari Denied November 9, 2006 Alabama Supreme Court 1051440.

Bryant A. Whitmire, Jr., of Whitmire & Coleman, Birmingham; and Albert L. Jordan and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellant.

Joe W. Morgan III, Birmingham, for appellees V.T. and E.T.

Casandra D. Velarde, Bessemer, guardian ad litem.

PER CURIAM.

S.P., the former long-term foster parent of A.M.A., appeals from a Jefferson Juvenile Court judgment denying her motion to modify custody; leaving custody of A.M.A. with a paternal aunt and uncle, V.T. and E.T., subject to S.P.'s visitation rights; and relieving the Department of Human Resources ("DHR") of further supervision as to A.M.A.'s custodial placement.

This is the sixth time that issues related to the custody of A.M.A. have been before this court. See W.T.M. v. Department of Human Res., 736 So.2d 1120 (Ala.Civ.App. 1999) ("W.T.M. I"); W.T.M. v. S.P., 802 So.2d 1091 (Ala.Civ.App.2001) ("W.T.M. II") (plurality opinion); Ex parte W.T.M., 851 So.2d 55 (Ala.Civ.App.2002) ("W.T.M. III") (plurality opinion); Ex parte E.T., 895 So.2d 271 (Ala.Civ.App.2003) ("W.T.M. IV") (plurality opinion); and W.T.M. v. S.P., 889 So.2d 572 (Ala.Civ.App.2003) ("W.T.M. V") (plurality opinion).

We will not provide a detailed recitation of the background of this case as it can be found in W.T.M. III, W.T.M. IV, and W.T.M. V. It is sufficient to say that in January 2003, on remand from this court's opinion in W.T.M. III, the Jefferson Juvenile Court entered an order awarding custody of A.M.A. to her paternal aunt and uncle, V.T. and E.T. Before the January 2003 custody award, A.M.A., who was approximately six years old at the time, had been in the physical custody of her foster mother, S.P., for over five years. V.T. and E.T. had visited with A.M.A., as had A.M.A.'s disabled father, W.T.M. However, W.T.M. has never had custody of A.M.A.¹

In February 2003, the juvenile court entered an order providing for visitation by A.M.A. with S.P. and A.M.A.'s foster siblings. The February 2003 order stated, in part:

"Said visitation is to begin immediately and is ordered by this Court so that the well-being of [A.M.A.] will be protected during her change of custody to [V.T. and E.T.], so that [A.M.A.] will develop a sense of security and stability during the transition. DHR has been ordered to provide counseling for [A.M.A.] under the supervision of a qualified therapist to address any trauma of uprooting [A.M.A.] from her prior foster home. Said DHR is ordered to provide this Court with a copy of said counselor's report every 60 days regarding the progress of [A.M.A.'s] transition."

The juvenile court subsequently ordered its "case file . . . closed."

Since January 2003, A.M.A. has been in the custody of V.T. and E.T., subject to supervision by DHR. S.P. and A.M.A.'s foster siblings have maintained visitation with A.M.A. at least two weekends each month at S.P.'s home and for a two-week extended visitation during the summer. W.T.M. has visited with A.M.A. on the weekends that she is not visiting with S.P. and on occasion during the summer months. However, it is apparent from the record that W.T.M.'s visitation routine has changed little since A.M.A. was in S.P.'s custody.

In October 2003, S.P. filed a motion to modify custody; V.T., E.T., and DHR were all served as parties. S.P. alleged, among other things, that a material change of circumstances had occurred since the entry of the January 2003 order and that custody of A.M.A., "who has been determined to be dependent," should be "transferred" to S.P. pursuant to Ala.Code 1975, § 12-15-71(a)(3)c., among other things. The alleged changes of circumstances included E.T.'s driving under the influence of alcohol and other allegations that reflect on E.T.'s character and A.M.A.'s circumstances. (E.T. had been charged with driving under the influence on at least three separate occasions after the entry of the January 2003 order.) We further note that at the September 2004 trial on S.P.'s motion, S.P. introduced evidence of the severe emotional difficulty A.M.A. has experienced regarding the maintenance of custody by V.T. and E.T. A.M.A. herself testified in camera. S.P. also introduced other evidence relating to problems with V.T. and E.T.'s care of A.M.A.

In December 2003, DHR filed a "Motion to be Relieved of Supervision." DHR requested that it be relieved of its supervisory obligation as to A.M.A.

In March 2004, over the objection of V.T. and E.T.'s attorney, the juvenile court entered an order stating that DHR was "relieved of providing counseling for [A.M.A.]"; the order did not change DHR's continuing obligation to supervise A.M.A.'s custody placement. To the contrary, in May 2004 the juvenile court entered an order stating that its March 2004 order was "amended, nunc pro tunc, to provide that [DHR] shall supervise this case, pending the hearing" on S.P.'s motion to modify custody.

In September 2004, the trial court conducted an ore tenus proceeding as to S.P.'s motion to modify custody. DHR participated as a party to the proceeding, as it had in other proceedings in this case after the entry of the January 2003 supervised custody award. At the outset of the trial, the parties' attorneys and the juvenile court discussed the appropriate standard to be applied by the juvenile court as to S.P.'s motion. S.P. submitted a memorandum in which she argued that the juvenile court should apply the best-interest-of-the-child standard because the case continued to involve the child's dependency. V.T. and E.T. argued that the juvenile court should apply the standard described in Ex parte McLendon, 455 So.2d 863 (Ala.1984). After considering the parties' arguments, the juvenile court stated the case was a dependency proceeding and that it would apply the best-interest-of-the-child standard, not the standard described in McLendon.

On the second day of trial, V.T. and E.T. filed a motion for a mistrial because, they alleged, the juvenile court was applying the wrong standard for making its custody determination. The juvenile court responded, "Well, at this time, I'm going to deny the motion for the mistrial. But at the close of the case, I'll consider, you know, what standard to use and write that in my order." Thereafter, the juvenile court entered a judgment stating that the appropriate standard to be applied was the standard described in McLendon, "whereby the petitioner must show that a change of custody will materially promote the child's best interest and welfare and produce evidence to overcome the inherently disruptive effect caused by uprooting the child." The juvenile court denied S.P.'s motion to modify custody. We note that the judgment also stated that

"[E.T.] is ordered to refrain from any use of alcohol while in the presence of said minor child and shall not transport said child in any vehicle while under the influence of any alcohol or illegal substance. . . . [S.P.] shall continue to have visitation with the minor child as previously ordered."

After the entry of the judgment, DHR filed a postjudgment motion requesting that the juvenile court amend its judgment in order to relieve DHR of supervision because DHR "does not feel that continued supervision of the child in the home of the custodians is warranted." The juvenile court granted DHR's motion, without conducting any further hearing. S.P. appeals.

The parties raise a number of issues in their appellate briefs. However, we find the dispositive issue to be whether the juvenile court was correct in applying the McLendon standard under the unusual facts of this case.

This court has consistently recognized that trial courts must observe a distinction between the standard to be applied in dependency proceedings (the best-interest standard) (see Ala.Code 1975, § 12-15-71(a)(4); and L.L.M. v. S.F., 919 So.2d 307, 311 (Ala.Civ.App.2005) ("Because this is a dependency case, the juvenile court needed to determine only if transferring legal custody of the child to the father was in the best interest of the child. . . . The juvenile court's determination of dependency obviated any necessity to apply the heightened custody-modification standard found in Ex parte McLendon.")) and the standard to be applied to custody proceedings after a child's dependency has ceased (the McLendon standard) (See In re F.W., 681 So.2d 208, 211 (Ala.Civ.App.1996) (stating, in a case involving a custody award in a dependency proceeding with no indication of continuing DHR supervision, that "the McLendon standard applies both to custody questions arising in divorce actions and in juvenile dependency cases such as this one"); cf. Ex parte G.C., 924 So.2d 651, 659 (Ala.2005) (stating, in the context of a custody proceeding involving an unfit parent where the court's custody order placed the child in the custody of the maternal grandparents, that the McLendon standard would be applicable to a future modification proceeding); and Ex parte J.P., 641 So.2d 276, 278 (Ala.1994) (applying the McLendon standard in a custody dispute between two sets of relatives where one set of relatives had been awarded custody under a prior judicial order.)).

Likewise this court has consistently held that when a case is more in the nature of a custody case than a determination-of-dependency case, the trial court must apply general principles of custody law rather than the provisions of the dependency statutes found in Ala.Code 1975, § 12-15-1 et seq. See, e.g., S.T.S. v. C.T., 746 So.2d 1017, 1021 (Ala.Civ.App.1999).

Thus, our courts have approved the application of the McLendon standard to juvenile court proceedings when the final dispositional order alleviated the child's dependency and a new pleading is thereafter filed requesting a...