Ex parte S.L.M. and R.S.M. , 2014 Ala. LEXIS 138 ( 2014 )

REL: 09/19/2014
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________
1130573
____________________
Ex parte S.L.M. and R.S.M.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: S.L.M. and R.S.M.
v.
S.C.)
(Etowah Juvenile Court, JU-11-120.02 and JU-11-487.02;
Court of Civil Appeals, 2120004)
STUART, Justice.
1130573
This Court issued a writ of certiorari to determine,
among other issues, whether the decision of the Court of Civil
Appeals on return to remand, determining that sufficient
evidence was presented to support the juvenile court's
decision to modify custody, conflicts with Ex parte McLendon,
455 So. 2d 863 (Ala. 1984).1 We reverse the judgment of the
Court of Civil Appeals and render a judgment for S.L.M. and
R.S.M.
Facts
S.C., the maternal grandmother, petitioned the Etowah
Juvenile Court to intervene and to grant her custody of
S.D.A., who was 19 months old at the time of trial, and
R.D.A., who was 9 months old at the time of trial, both of
whom were in the custody of S.L.M. and R.S.M. (S.D.A. and
1
This case presents a procedural quagmire and involves
questionable decisions by both the juvenile court and the
Court of Civil Appeals. Given the posture of this case and
the importance of minimizing disruption in custody and
promoting stability of custody in this case, this Court
addresses this determinative substantive issue and pretermits
the consideration of other issues. Our refusal to address the
other issues, however, should not be understood as an approval
of all the language, reasons, or statements of law in the
Court of Civil Appeals' opinions relating to those other
issues or in the juvenile court's orders. Cf. Horsley v.
Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
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R.D.A. are hereinafter referred to collectively as "the
children").2 S.L.M. and R.S.M. are not related to the
children. In the petitions, the grandmother alleged that the
children were dependent as to the mother and the biological
father, that S.L.M. may have been awarded temporary custody of
the children, and that it would be in the best interest of the
children for the children to be placed in her custody.
At trial, the maternal grandmother testified that she
lived in Kentucky, that she and the children's mother were
estranged, that she had custody of the mother's oldest child,
and that she had been unaware of the births of the children.
She explained that, when she learned about the children, she
contacted the Department of Human Resources, requesting
information about and custody of the children. She testified
that she was physically and financially able to take care of
all three children and that she wanted them to grow up as a
family. The maternal grandmother admitted that she had never
met the children and that the oldest child had only seen
photographs of the children.
2
Specifically, S.L.M. had been awarded "temporary legal
custody" of S.D.A., and S.L.M. and R.S.M. had been awarded
custody of R.D.A.
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S.L.M. testified that, although she was not a blood
relative of the mother, she had known the mother for over 20
years and considered the mother a "sister." She explained:
"We are –- I love [the mother] like a sister, and
she loves me. I have been the only person there for
[the mother]. [The mother] is a struggling drug
addict that needs help, and I have been the only one
there. But no, we are not related."
With regard to her relationship with the children, S.L.M.
testified that the children had lived with her and her
husband, R.S.M., since their respective births. She explained
that she brought each child to her home from the hospital
because of the mother's drug-addiction problems. S.L.M.
testified:
"I love them like they are my own. I have cared for
the children since day one. I stayed in the
Birmingham hospital with [the youngest child] for
five weeks because she was born premature in a motel
room and almost died. None of [the mother's] family
... could even call me and ask if that baby was
alive or dead. I was the only one there for that
baby, the only one. I have had the babies since day
one. I have been the only one there for them, and
I love them. I love them like they are my own."
She stated that R.S.M. is a good father and that their
daughter loves the children. When asked how often the mother
visits with the children, S.L.M. replied, "sometimes a week,
sometime a couple of weeks. It just depends on how [the
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mother] is to tell you the truth." She stated that she
allowed the mother to visit with the children if the mother
was "straight."
R.S.M. testified that he shares custody of the children
with S.L.M., his wife of 13 years. He stated that he loved
the children like his own daughter and that he willingly
provided for them, carried them to doctor's appointments, and
used his income to support them.
The mother testified that she wanted S.L.M. to have
custody of her children. She elaborated about the children's
lives with S.L.M., stating:
"[W]hen I went to church with the kids –- they are
going to church. They are living a very Christian
life. The kids are done very fairly. I mean, they
have got all the toys in the world you can dream of.
I mean, they are spoiled. I mean, I will give you
that. They are spoiled. And they are really over
loved. They are. I mean, there is so much love
around them."
The mother admitted that the maternal grandmother could
provide adequately for the children but maintained that she
wanted the children to remain with S.L.M. and R.S.M. so that
she could continue to have a relationship with the children.
The following testimony was developed with regard to the
mother's visitation and relationship with the children:
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"[THE COURT]: How often do you see the two children
here?
"[The mother]: Well, up until I had left[3] I was
getting to see them once a week to once every two
weeks, depending upon their schedule.
"[THE COURT]: How often would you see them when you
would see them?
"[The mother]: A couple of hours a day. The longest
–- what was it, nine hours I got? And then I spent
the night, spent the night on several occasions.
And then the girls, they spent the night with me.
"Remember, you came over to the motel and you
stayed the night with me when [my boyfriend] was at
work.
"[S.L.M.]: We stayed until late but we never stayed
all night.
"[The mother]: I'm sorry. That's my mistake.
"....
"[THE COURT]: Tell me more about the night that you
–- the children were there late at the motel. Where
was that at?
"[The mother]: That's when I was –- that's when I
was over there at Super 8 [motel].
"[THE COURT]: How long has that been?
"[The mother]: It ain't been long. Probably weeks.
"[THE COURT]: Recently?
3
The mother moved to Arizona to find temporary employment.
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"[The mother]: Yeah, recently.
"[THE COURT]: And that's the time you were doing
drugs from what you testified a while ago. Were you
not on drugs?
"[The mother]: I had one relapse about two months
ago. It may have been three. I'm guessing two.
I'm having to guess here.
"[THE COURT]: You were saying it was two months ago
that this happened. So this was the time --
"[S.L.M.]: It was before her relapse. Like a week
later I called her to tell her we were going to come
back over and let her see the kids, and she told me
she relapsed, and I didn't go back.
"[The mother]: Anytime I have relapsed I have been
honest with her. Anytime I have relapsed I have
been honest with her.
"....
"[THE COURT]: If I decided that I don't want you
around the kids based on the fact of your drug usage
and entered an order that [S.L.M.] could not let you
see the children, what would that do to you and
placement? Would that affect it? I'm really
concerned about you being around the kids with drug
use. I'm just curious. Would that change in your
mind –- is the fact that [S.L.M.] gives you access
to the children --
"[The mother]: She doesn't let me be around them
when I'm using, no. I have always been honest with
her. I know she is probably mad at me right now
knowing that I have. But I have always been honest
with her.
"....
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"[THE COURT]: Has [the mother] ever been with the
children alone since you have had them?
"[S.L.M.]: Never, ever.
"[THE COURT]: So a while ago when she testified she
had them one night by herself in a motel, that never
happened?
"[S.L.M.]: No sir. That was the night I was there.
We stayed until about 11:00 o'clock that night. We
took her out to eat at Pizza Hut. He dropped us
off, and he come back at 11:00 o'clock at night to
pick us up. She has never been one minute by
herself with those children ever, never."
In closing, the maternal grandmother's counsel argued
that the children should be placed with a relative and that,
because the children's half sister was in the custody of the
maternal grandmother, the children should be placed in the
custody of the maternal grandmother and be united with their
half sister.
After considering the evidence, the juvenile court
entered orders awarding custody of the children to the
maternal grandmother. After S.L.M. and R.S.M.'s posttrial
motions were denied, they appealed the judgment to the Court
of Civil Appeals.
The Court of Civil Appeals, after reviewing the record,
remanded the cases to the juvenile court to make written
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findings of fact to support its judgments. S.L.M. v. S.C.,
[Ms. 2120004, April 12, 2013] ___ So. 3d ___, ___ (Ala. Civ.
App. 2013). On remand, the juvenile court entered identical
orders as to each child explaining the reasons for its
decision to modify custody with regard to each child, stating:
"3. This Court heard evidence at [a] hearing
addressing [the maternal grandmother's] petition for
custody. The evidence heard included all events
from the birth of both children to present. The
[maternal grandmother] provided testimony that she
is a fit and proper person to have the care, custody
and control of her granddaughter. She also has
custody of the minor child's older half sibling.
"4. At the hearing, the mother of the minor
child testified that the present custodians let her
have overnight visits with the minor child. The
mother also testified that she was still using drugs
and still had a problem with them. She also
testified that she did not want her mother to have
custody of the minor child because she would hold
her accountable for using drugs and restrict her
visits with the minor child if the mother was using
drugs, but the present custodian understood her drug
use even though it would make her mad. The Court
was greatly disturbed by this, and concerned that
the minor child was being exposed to the situation
which removed her from her natural mother in the
first place. It was clear and convincing evidence
from the testimony of all the parties, that the
[maternal grandmother] limits the contact between
the mother and the older half sibling but that the
present custodians of the minor child [do] not.
"....
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"Based on the evidence, the Court finds that
there has been a material change in circumstances in
this case and that the positive good brought about
by the modification would more than offset the
inherently disruptive effect caused by uprooting the
child. The child is young and the court finds that
the young child will adapt to the circumstances.
She would be living with a loving grandmother, with
her other siblings.
"This Court finds that the positive good brought
by the change of custody would offset any disruption
that might be caused. By granting custody of the
child to the [maternal grandmother], all of the
children would be together, and be protected from
their mother who admitted to still using drugs."
On return to remand, the Court of Civil Appeals affirmed the
juvenile court's judgments. S.L.M. v. S.C., [Ms. 2120004,
October 4, 2013] ___ So. 3d ___ (Ala. Civ. App. 2013)(opinion
on return to remand).
Standard of Review
"'On certiorari review, this Court accords no
presumption of correctness to the legal conclusions
of the intermediate appellate court. Therefore, we
must apply de novo the standard of review that was
applicable in the Court of Civil Appeals.'"
Ex parte Helms, 873 So. 2d 1139, 1143 (Ala. 2003)(quoting Ex
parte Toyota Motor Corp., 684 So. 2d 132, 135 (Ala. 1996)).
Discussion
S.L.M. and R.S.M. contend that the Court of Civil Appeals
erred in affirming the juvenile court's judgments holding
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that the maternal grandmother presented sufficient evidence to
modify custody of the children.
After a juvenile court has placed a dependent child into
the custody of a proper caregiver, consideration of a change
of custody is conducted pursuant to the standard set forth in
Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). See Ex parte
J.P., 641 So. 2d 276, 278 (Ala. 1994)(applying the McLendon
standard in a custody dispute between two sets of relatives
when one set of relatives had been awarded custody under a
prior judicial order). In Ex parte Cleghorn, 993 So. 2d 462,
466–68 (Ala. 2008), this Court stated:
"In Ex parte McLendon, we held that the trial court
cannot order a change of custody '"unless [the party
seeking the change of custody] can show that a
change of the custody will materially promote [the]
child's welfare."' 455 So. 2d at 865 (quoting
Greene v. Greene, 249 Ala. 155, 157, 30 So. 2d 444,
445 (1947)). We noted in Ex parte McLendon that
'[i]t is important that [the party seeking the
change in custody] show that the child's interests
are promoted by the change, i.e., that [the party
seeking the change in custody] produce evidence to
overcome the "inherently disruptive effect caused by
uprooting the child."' 455 So. 2d at 866. ...
"....
"Our decision in Ex parte McLendon provides that
a party seeking a change in custody must show that
the change 'will materially promote [the] child's
welfare.' 455 So. 2d at 865. The McLendon standard
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is a 'rule of repose,' meant to minimize disruptive
changes of custody because this Court presumes that
stability is inherently more beneficial to a child
than disruption. Ex parte McLendon, 455 So. 2d at
865. It is founded on the longstanding principle
that '[i]t is the court's duty to scrupulously guard
and protect the interests of children. And in the
context of child-custody proceedings, the dominant
consideration is always the best interest of the
child.' Ex parte Fann, 810 So. 2d 631, 638 (Ala.
2001). See also McCartney v. McCartney, 11 So. 3d
213, 220-21 (Ala. Civ. App. 2007)('"The controlling
consideration in child-custody matters is always the
best interests of the child."' (quoting Patrick v.
Williams, 952 So. 2d 1131, 1140 (Ala. Civ. App.
2006)))."
Here, the evidence is not sufficient to satisfy the
McLendon standard, and it does not support a finding that the
children's best interest would be served by modifying custody
and removing the children from S.L.M. and R.S.M.'s home. The
children have lived in the Gadsden area and have been with
S.L.M and R.S.M. since their births. R.D.A. was born
premature and struggled to survive. S.L.M. cared for her
throughout her five-week hospitalization and has continued,
along with R.S.M., to tend to her medical needs. The evidence
indicates that the children's physical and financial needs are
met and that they are well loved. The maternal grandmother
testified that she wanted custody of the children because they
were blood relatives and because she wanted to unite them with
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their half sister. The maternal grandmother, however,
admitted that she had never seen the children and that,
although the older half sister of the children had seen
photographs of the children, she also had never met them. The
evidence simply does not support a finding that the benefits
of relocating the children with the maternal grandmother would
materially promote the best interest of the children and more
than offset the disruptive effect of a change of custody.
Instead, the record supports the need to "preserve the
stability of these young children by keeping them in an
indisputably suitable home with two undeniably commendable and
caring custodians instead of uprooting them to live with
complete strangers, although ones related by blood, in an
unknown environment." S.L.M. v. S.C., [Ms. 2120004, Feb. 14,
2014] ___ So. 3d ___, ___ (Ala. Civ. App. 2013)(order
overruling application for rehearing)(Moore, J.,
dissenting)(footnote omitted).
This Court is mindful of the juvenile court's concern
that the children in S.L.M. and R.S.M.'s custody may be
exposed to the situation that caused them to be removed from
the mother in the first place. However, the evidence was not
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clear and convincing that the children had indeed been exposed
to the mother's drug use; rather, the testimony established
clearly and convincingly that, although S.L.M. "understands"
the mother's drug use, she does not allow the children to be
around the mother when the mother is using drugs.
"'A custody determination of the [juvenile] court
entered upon oral testimony is accorded a
presumption of correctness on appeal, Payne v.
Payne, 550 SO. 2d 440 (Ala. Civ. App. 1989), and
Vail v. Vail, 532 So. 2d 639 (Ala. Civ. App. 1988),
and we will not reverse unless the evidence so fails
to support the determination that it is plainly and
palpably wrong.'"
Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994)(quoting
Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App.
1993)). Here, the evidence does not support a modification of
custody. Nothing in the record supports the conclusion that
modifying custody and removing the children from the home of
S.L.M. and R.S.M. would materially promote the children's best
interest; therefore, granting the maternal grandmother
custody of the children is plainly and palpably wrong.
Conclusion
Based on the foregoing, the judgment of the Court of
Civil Appeals affirming the juvenile court's erroneous
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judgment is reversed, and a judgment is rendered for S.L.M.
and R.S.M.
REVERSED AND JUDGMENT RENDERED.
Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.
Murdock, J., concurs in the result.
Moore, C.J., dissents.
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