WTM v. SP
Decision Date | 18 May 2001 |
Citation | 802 So.2d 1091 |
Parties | W.T.M. v. S.P. V.T. v. S.P. State Department of Human Resources v. S.P. |
Court | Alabama Court of Civil Appeals |
Kathryn L. "Sunny" Lippert, Birmingham, for appellant W.T.M.
Joe W. Morgan III, Birmingham, for appellant V.T.
J. Coleman Campbell and Lynn S. Merrill, asst. attys. gen., for appellant Department of Human Resources.
Douglas Rogers, Birmingham, for appellee S.P.
Ginette A. Dow, guardian ad litem.
On Application for Rehearing
The opinion of January 12, 2001, is withdrawn and the following is substituted therefor:
The juvenile court awarded custody of three-year-old A.M.A. to her foster mother, S.P. From that judgment, the child's father ("W.T.M."), the child's paternal aunt ("V.T."), and the Department of Human Resources ("DHR") appeal.
The parents of A.M.A. are not, and have never been, married to each other. In 1997, DHR filed a dependency petition, alleging that A.M.A., who was then an infant, was dependent because, it said, she had been born a "crack baby" and her mother, it claimed, was using cocaine and not providing adequate care for her. DHR obtained protective custody of A.M.A., and the child was placed in foster care.
In February 1998, W.T.M., who had established a relationship with A.M.A. at birth, was judicially determined to be her father. In March 1998, W.T.M., along with his sister S.B., petitioned for joint custody of the child, alleging that W.T.M. had suffered a disabling stroke and was unable to care for the child without help. After a dispositional hearing in August 1998, the juvenile court ordered that the child remain in the custody of DHR, with foster-care placement. W.T.M. and S.B. appealed that order to this court, but the appeal was dismissed as untimely. See W.T.M. v. Department of Human Res., 736 So.2d 1120 (Ala.Civ.App.1999).
In May 1999, V.T., another sister of W.T.M. and the child's paternal aunt, moved to intervene and, along with her husband, petitioned for custody of A.M.A. In June 1999, S.P., the child's foster mother, also moved to intervene and sought custody. The juvenile court granted both motions to intervene and, following a dispositional hearing, awarded custody to S.P. and granted specific rights of visitation to the father as well as to V.T. and her husband.
The judgment states, in part:
The guardian ad litem argues that the father does not have standing to appeal because he was not a "party" below. The father responds by arguing that, but for his physical disability, he would have been a "party" petitioning for custody. Nevertheless, he claims, he has an interest in the litigation, because, if his sister is given custody of the child, he will have a greater role in the child's upbringing than if the foster mother is given custody. We agree with the father. One has standing if he or she has "a real, tangible interest in the subject matter of the lawsuit." City of Hoover v. Oliver & Wright Motors, Inc., 730 So.2d 608, 610 (Ala.1999).
State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027-28 (Ala.1999) (emphasis in original) (citations omitted). The father has suffered an injury to a "legally protected right" because, although he does not have custody of the child, his parental rights have not been terminated. Moreover, he has the "residual parental rights and responsibilities" referred to in § 12-15-1(24), Ala.Code 1975:
Clearly, the father has "a real, tangible interest in the subject matter of the lawsuit."
The father raises several issues on appeal that we need not decide at this time because we conclude that the trial court erred in determining that the proceeding was a custody modification dictating the application of the McLendon standard, rather than the dispositional phase of a dependency proceeding requiring the application of the "best interest" standard. The record makes it clear that the proceeding was the dispositional phase of a dependency proceeding. This court has consistently held that the "best interest" standard applies to such proceedings. See W.T. v. State Dep't of Human Res., 707 So.2d 647, 650 (Ala.Civ.App.1997)...
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