T.C. v. Y.R.

• Decision Date: 01 August 2014
• Docket Number: 2130326,2130327
• Parties: T.C. v. Y.R.
• Court: Alabama Court of Civil Appeals

T.C. v. Y.R.

2130326

2130327

ALABAMA COURT OF CIVIL APPEALS

SPECIAL TERM, 2014

August 1, 2014

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 Houston Juvenile Court

(JU-12-526.01 and JU-12-527.01)

DONALDSON, Judge.

T.C. ("the mother") appeals the judgments entered by the Houston Juvenile Court ("the trial court") on December 19, 2013, which found El.E. and Ev.E. ("the children") to bedependent and placing the children in the custody of Y.R. ("the maternal grandmother").

Facts and Procedural History

The maternal grandmother filed petitions on August 27, 2012, in the trial court alleging that the children were dependent. The petitions set forth numerous grounds in support of that assertion, specifically alleging, among other things, that the mother had been in several relationships involving domestic violence, that the mother abuses prescription drugs, and that the mother was at that time admitted to the behavioral-medicine unit of a hospital for mental illness. The maternal grandmother requested legal custody of the children. On that same date, the trial court granted temporary custody of the children to the maternal grandmother. The trial of the matter was continued numerous times, in part to allow the mother to obtain a mental evaluation and in part because, in December 2012, D.E. ("the father") filed a custody-modification petition in Louisiana state court regarding the children. That action was ultimately resolved when the Louisiana state court declined toexercise jurisdiction over the children and the father dismissed his petition.

The trial court held an adjudicatory hearing on December 12, 2013, at which the only evidence submitted was through the testimony of the mother and the maternal grandmother. The father was also a party to the actions but did not appear at the trial, has not appealed the trial court's judgments, and has not taken any part in these appeals.

At trial, the mother testified that she had moved from Alabama and was living in a one-bedroom converted garage apartment in Norco, Louisiana, where she had been since May 2013. She testified:

"I have been looking for a bigger, two- to three-bedroom apartment. I've found some. I'm still holding out hope that I can get it at a cheaper price. Being that my car just broke down, I had to take all the money I was saving towards that to purchase a car."

The mother testified that her current job was as an assistant manager at a pizza store, where she had been working since August 2013. She testified that she was taking the prescription medications Effexor for treatment of "situational depression" and Vicoprofen (a combination of hydrocodone and ibuprofen) twice daily for pain. She testified that she wasseeing a pastor for counseling but that she was not under the care of any mental-health professionals.

When questioned about how many schools the children had attended while in her care, the mother testified that "a number doesn't pop into my head immediately ... I could probably count. But I would like to say right at seven."

The mother testified that she did not think the maternal grandmother had given adequate care to the children. In explaining her dissatisfaction with the maternal grandmother's parenting skills, the mother said: "Look at me, for one, how I turned out. Do you think I want my children to be raised by the same monster that's done this to me?"

The mother testified that one of the children is deaf in one ear and requires a hearing aid for the other as a result of a birth defect. The maternal grandmother testified that she had sought surgical treatment for this child. The mother testified that she was opposed to the surgical treatment.

The maternal grandmother testified that the mother had experienced mental-illness issues since her childhood. The maternal grandmother testified that the mother had been engaged in several abusive relationships, had movedfrequently, and had failed to adequately provide for herself and for the children regularly throughout their lives. Evidence was presented regarding the mother's past abusive relationships, her abuse of drugs, and her mental-health treatment which included inpatient care. The evidence also showed that the mother had not contributed any amounts toward the support of the children while they had been in the custody of the maternal grandmother.

On December 19, 2013, the trial court entered separate judgments finding the children to be dependent and placing them into the permanent custody of the maternal grandmother. The judgments did not make any findings of fact or state the specific grounds on which the court found the children to be dependent. Neither party takes issue on appeal with the failure of the trial court to issue written findings of fact or to provide the basis of its finding of dependency.

The mother filed motions to alter, amend, or vacate on January 2, 2014, arguing that the evidence did not support a finding that the children were still dependent at the time of the hearing or in the months leading up to the hearing. Thetrial court denied that motion the same day. The mother filed her notices of appeal on January 2, 2014.

Standard of Review

"'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). ...'

"__________

"³The requirement that a finding of dependency must be supported by clear and convincing evidence before the dispositional phase of a dependency proceeding is now codified at § 12-15-311(a), Ala. Code 1975."

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)). See also Ex parte McInish, 47 So. 3d 767 (Ala. 2008) (explaining the standard of review to be used in evaluating whether the clear-and-convincing-evidence burden of proof has been met).

Discussion

The mother raises a single issue on appeal -- whether the trial court's judgments are supported by clear and convincing evidence that the children were dependent at the time of disposition. The mother concedes that, at the time the maternal grandmother filed her petitions seeking a finding of dependency, the children were dependent because "she has had some difficulties and instability in the past." This includes the facts that the mother has moved frequently, has been in a series of physically abusive relationships, and had been admitted to the behavioral-medicine unit of a hospital at the time the petitions were filed. However, the mother argues that the testimony shows that, at that time of trial, "she has 'gotten it together' without any help from [the maternalgrandmother]" and that "she is more stable than she has been for most of her life." Aside from citation to general propositions of law, the mother's argument rests on a citation to V.W. v. G.W., 990 So. 2d 414, 417 (Ala. Civ. App. 2008) ("'[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.'" (quoting K.B. v. Cleburne Cnty. Dep't of Human Res., 897 So. 2d 379, 389 (Ala. Civ. App. 2004)(Murdock, J., concurring in the result))).

The trial court did not make specific findings of the fact supporting the adjudications of dependency.

"'[W]here a trial court does not make specific findings of fact concerning an issue, this Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.' Lemon v. Golf Terrace Owners Ass'n, 611 So. 2d 263, 265 (Ala. 1992). See W.D. Williams, Inc. v. Ivey, 777 So. 2d 94, 98 (Ala. 2000); Ex parte Patronas, 693 So. 2d 473, 475 (Ala. 1997); Ex parte Bryowsky, 676 So. 2d [1322,] 1324 [(Ala. 1996)]; Jantronic Systems, Inc. v. Brock, 646 So. 2d 1337, 1337 (Ala. 1994); Meeks v. Hill, 557 So. 2d 1238, 1240 (Ala. 1990); May v. Campbell, 470 So. 2d 1188, 1190 (Ala. 1985); Hand v. Stanard, 392 So. 2d 1157, 1159 (Ala. 1980). Moreover, '[b]ecause the trial court has the advantage of observing the witnesses' demeanor and has a superior opportunity to assess their credibility, this Court cannot alter the trial court's judgment unless it is so unsupported by the evidence as to be clearly and palpably wrong.' Exparte D.W.W., 717 So. 2d 793, 795 (Ala. 1998) (emphasis added)."

Ex parte Fann, 810 So. 2d 631, 636 (Ala. 2001).

The mother argues that the evidence shows that, at the time of the disposition, she had a job and transportation, was receiving pastoral counseling and medication, and was not currently in a romantic relationship. The testimony presented by the mother at trial, if believed by the trial court, would indicate that the mother made progress in gaining stability during the pendency of the litigation. However, the trial court could have found from the mother's own testimony that she had several remaining issues affecting her ability to provide for the care, support, and education of the children and to discharge her responsibilities to and for...