V.W. v. G.W., 2060902.
| Decision Date | 22 February 2008 |
| Docket Number | 2060902. |
| Citation | 990 So.2d 414 |
| Parties | V.W. v. G.W. |
| Court | Alabama Court of Civil Appeals |
Debbie Lindsey Jared, Elba, for appellee.
V.W. ("the mother") appeals from a judgment of the Coffee Juvenile Court determining G.L.W. ("the child") to be a dependent child and awarding custody of the child to G.W. ("the father"). Because the juvenile court's judgment is not supported by the facts and the governing law, we reverse and remand.
The record reveals that the child was born in December 1998. Although there is no indication in the record that the parties have ever married or that the child's paternity has ever been finally adjudicated, neither party disputes that the father is the child's biological father. Before the instant action, the child had since her birth been in the mother's physical custody with the exception of a brief period during the child's infancy. Further, the father has, at various times, been judicially obligated to pay child support to the mother for the benefit of the child.
On January 6, 2006, the father, proceeding through counsel, filed in the juvenile court a verified document captioned "In the Matter of G.L.W." and styled "Petition for Custody." In that document, the father averred that the mother had left the child "with relatives or others most of the time," that the mother "d[id] not have a stable life," that the mother had "associate[d] with known drug users and manufacture[r]s" so as to endanger the child, that illicit drugs were being produced at the mother's residence, that police officers had "raided" the mother's residence while the child was present, that drug residue was found at the mother's home, and that it would be "in the best interest of the minor child to be placed in the care, custody and control of [the father] pending a final hearing ... and thereafter." The "Petition for Custody" did not allege that the child was dependent under Ala.Code 1975, § 12-15-1 et seq. The record also contains an unsigned "Dependent Petition" form, filed on January 25, 2006, in which three boxes on a checklist have been marked so as to indicate contentions that the child was dependent: (1) because her "custody [was] the subject of controversy"; (2) because she was "in a condition or surroundings or ... under improper or insufficient guardianship or control as to endanger [her] morals, health, or general welfare"; and (3) because she was "without proper parental care and control necessary for [her] well-being because of the faults or habits of [her] parents, guardian, or other custodian or their neglect or refusal, when able to do so, to provide them."
In March 2006, in response to the father's filings, the juvenile court, after an ex parte hearing at which only the father appeared, entered an order determining that "emergency and/or exigent circumstances exist[ed] to warrant" awarding custody of the child to the father pending a final hearing and suspending the father's child-support obligations. The mother then filed a motion to set aside that order, alleging that the father's motivation for seeking custody of the child stemmed not from any emergency situation, but rather from the mother's intent to seek enforcement of the father's duty to pay child support. Although the juvenile court denied that motion after a hearing, that court ordered home studies to be undertaken as to the mother and the father by representatives of the local department of human resources. After those studies had been undertaken, the mother, through new counsel, filed a motion to dismiss the action and to restore her custody of the child; no action was taken on that motion.
On November 9, 2006, during a colloquy at the beginning of trial, counsel for the father stated that she had initially filed the "Petition for Custody" but that she had later been informed by the office of the juvenile judge that a dependency petition should be filed. The juvenile judge, in response to counsel's remarks, stated that the use in the "Petition for Custody" of the nonadversarial caption "In the matter of" was indicative of a dependency matter rather than a custody dispute and that its use would have triggered the judge's personnel to obtain from the father's counsel completed forms typical of dependency cases. The juvenile judge then stated:
After receiving testimony from the child's schoolteachers, the father, the mother, and the mother's former husband, the juvenile court entered a judgment on June 21, 2007. In its judgment, which was entered on a preprinted form, the juvenile court made notations indicating that it had found the child dependent pursuant to § 12-15-1(10), Ala.Code 1975, and that custody of the child was awarded to the father. The mother timely appealed from the juvenile court's judgment, and this court has appellate jurisdiction based upon the adequacy for review of the record, as certified by the juvenile court. See Rule 28(A)(1)(a), Ala. R. Juv. P.
In her brief on appeal, the mother contends, among other things, that the juvenile court's judgment of dependency is contrary to Ala.Code 1975, § 12-15-1(10), which defines a "dependent child" under Alabama law.1 In response, the father contends that the evidence supports the propositions that the child is "in a condition or surroundings or is under improper or insufficient guardianship or control as to endanger the morals, health, or general welfare of the child" and/or "has no proper parental care of guardianship" and, thus, falls within the definitions of a dependent child in subsections f. and g. of § 12-15-1(10).
At trial, after being called as a witness by his attorney, the father testified that, although he did not believe that the mother was herself a current danger to the child, he had "heard things" from the child's reports that "ma[d]e [him] concerned" about some of the people with whom the mother had allegedly associated. When the father's counsel attempted to elicit testimony from the father regarding the child's reports, the mother objected, asserting that such testimony would be hearsay; the juvenile court sustained that objection. The father then opined, without elaboration, that he was concerned because the mother had been to nightclubs to consume alcoholic beverages and "because of the things that I know [the mother] was doing" and "the people that I know that she has had around her." The father also stated that, in his opinion, a parent should not seek higher education at the expense of a current job. On cross-examination, the father admitted that the mother had visited nightclubs and had consumed alcoholic beverages for several years preceding the filing of the "Petition for Custody," including during the father's relationship with the mother seven years before, and he could not identify particular dangerous male individuals with whom the mother had been associating.
According to his testimony on cross-examination, the particular "immediate harm" upon which the father had based his...
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