M.A. v. C.S. and A.S. ( 2023 )

Rel: March 10, 2023
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) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________
CL-2022-0676 and CL-2022-0677
_________________________
M.A.
v.
C.S. and A.S.
Appeals from Lee Juvenile Court
(JU-20-227.01 and JU-20-227.02)
PER CURIAM.
In these consolidated appeals, M.A. ("the father"), the father of B.A.
("the child"), appeals from identical judgments that the Lee Juvenile
Court ("the juvenile court") entered in each of two dependency actions
pertaining to the child. Those judgments vested the father with custody
CL-2022-0676 and CL-2022-0677
of the child but found that the child remained dependent as to the father
and granted C.S. and A.S. ("the maternal grandparents"), the child's
maternal grandparents, visitation with the child. On appeal, the father
challenges the juvenile court's judgments insofar as they found that the
child remained dependent as to the father and granted the maternal
grandparents visitation with the child. Because we conclude that the
juvenile court could not reasonably have been clearly convinced from the
evidence that the child remained dependent as to the father when it
entered its final judgments, we dismiss the appeals with instructions to
the juvenile court to vacate its judgments, to dismiss the actions in which
it entered the judgments, and to allow custody of the child to be returned
to the father.
Background
T.S. ("the mother"), the child's mother, is deceased. Before her
death, the mother and the father were in a romantic relationship and
lived together but were never married. The child was born in November
2018. After the child's birth, the child was in the custody of the mother
and the father until the mother's death in August 2020.
2
CL-2022-0676 and CL-2022-0677
In May 2020, the father was hospitalized because of a drug
overdose. Subsequently, in July 2020, the father was hospitalized a
second time because of a drug overdose. During this second hospital stay,
the father's physicians discovered that he had a brain lesion. On August
29, 2020, while the father was still hospitalized, the mother used illicit
drugs and died as a result. When the father had recovered from his
second drug overdose, he underwent successful surgery to remove the
brain lesion.
In September 2020, the maternal grandparents filed a dependency
petition regarding the child in the juvenile court. In their petition, they
alleged that the child was dependent because, they said, the mother had
died and the father was unable to discharge his parental responsibilities.
The maternal grandparents' petition sought custody of the child if the
juvenile court found that the child was dependent but did not seek
visitation if the juvenile court did not find the child dependent. A few
days after the maternal grandparents filed their petition, E.A. ("the
paternal grandmother"), the father's mother and the paternal
grandmother of the children, also filed a dependency petition regarding
the child in the juvenile court. The juvenile court assigned the maternal
3
CL-2022-0676 and CL-2022-0677
grandparents' action ("the .01 action") a .01 designator and assigned the
paternal grandmother's action ("the .02 action") a .02 designator.
The juvenile court ordered the father and the child to submit to
DNA testing, and the results of the DNA testing confirmed that the
father is the child's father. On September 29, 2020, the juvenile court
held a hearing regarding both the maternal grandparents' petition and
the paternal grandmother's petition. On September 30, 2020, the juvenile
court entered identical orders in both the .01 action and the .02 action.
Those September 30, 2020, orders stated that the father had agreed at
the hearing that the child was dependent, granted the maternal
grandparents pendente lite custody of the child, granted the father
supervised visitation, and required the father to satisfy the requirements
of a to-do list that was attached to the order. The to-do list attached to
the September 30, 2020, order required the father to refrain from using
drugs and alcohol; to submit to hair-follicle drug testing before
modification of the September 30, 2020, order; to submit to a substance-
abuse assessment as soon as possible; to follow the recommendations
made in the substance-abuse assessment; to obtain and maintain stable
housing; to obtain and maintain stable employment; to submit to a
4
CL-2022-0676 and CL-2022-0677
mental-health assessment as soon as possible; and to comply with the
recommendations made in the mental-health assessment.
On October 19, 2020, the East Alabama Mental Health Center
performed a substance-abuse assessment and a mental-health
assessment on the father. The substance-abuse assessment
recommended that the father receive substance-abuse treatment. The
father subsequently completed an outpatient substance-abuse-treatment
program on April 8, 2021. The mental-health assessment did not
diagnose the father as suffering from a mental illness; however, he
voluntarily participated in individual counseling and followed a
physician's suggestion that he take buspirone and citalopram for anxiety
and depression. He testified that he was not receiving counseling for
anxiety and depression. He said that he was in a good mood most of the
time.
The father submitted to hair-follicle drug tests in December 2020,
April 2021, June 2021, and March 2022. The results of all his drug tests
were negative for the presence of illicit drugs.
After the father recovered from the surgery to remove his brain
lesion, he obtained and maintained employment. When the juvenile court
5
CL-2022-0676 and CL-2022-0677
held the final dispositional hearing, the father had been working for the
same employer for five months.
When the hospital discharged him following his brain surgery, the
father initially lived with the paternal grandmother, her husband, and
the father's brother; however, two months before the final dispositional
hearing, the father rented and moved into his own three-bedroom, two-
bathroom house ("the rental house").
Following a review hearing, the juvenile court, on June 29, 2021,
entered identical orders in both the .01 action and the .02 action that
granted the father unsupervised visitation with the child and ordered
him to pay the maternal grandparents child support in the amount of
$359 per month.
On March 30, 2022, the juvenile court held a final dispositional
hearing. At that hearing, the father testified that he had satisfied all the
requirements listed on the to-do list attached to the juvenile court's
September 30, 2020, order. He testified that he had most recently
submitted to a hair-follicle drug test on March 16, 2022, two weeks before
the final dispositional hearing and that the result of that test indicated
6
CL-2022-0676 and CL-2022-0677
that he did not have any illicit drugs in his system. He introduced the
written March 16, 2022, drug-test result into evidence.
The father testified that he was the only occupant of the rental
house except when the child stayed there during visits. Both the father
and the paternal grandmother testified that the paternal grandmother
had cosigned the lease with the father but that she did not provide him
with any financial assistance. The father testified that the child has his
own bedroom and his own bathroom in the rental house. He introduced
photographs of the interior and exterior of the rental house. The
photographs depict a house that would be suitable for the child to live in.
The father testified that the exterior of the rental house is brick, that the
rental house has a fenced-in backyard, that it is in a good neighborhood,
and that a park, a playground, and baseball fields were within walking
distance of the rental house.
The father testified that his income from his employment was
sufficient to pay his and the child's living expenses. The father admitted
that he and the mother had been substance abusers when the maternal
grandparents filed their dependency petition, but he said that he had
refrained from using drugs or alcohol since July 2020, that he had
7
CL-2022-0676 and CL-2022-0677
changed for the better since then, and that he had become a different
person. He further said that he wanted to be the best father to the child
that he could be and that he would never engage in substance abuse
again.
The paternal grandmother testified that she did not have any
concerns about the father's ability to care for the child independently.
She testified that, in her opinion, the father was doing well both mentally
and emotionally. She said that the father has been sober for a significant
period and that his behavior has improved substantially since he has
been sober. She said that he no longer drinks any alcohol of any kind,
that he no longer has any contact with the people he knew who were
using illicit drugs, and that his life now consists of going to work, going
to the grocery store, going to the gym, and going home.
The father testified that he and the maternal grandparents are civil
to each other but that he does not trust them. He said that they have
repeatedly asked him to discuss the circumstances of the mother's death
and that he has declined to do so. He said that the maternal grandparents
had refused to allow the child to visit him at any time that was not
specified in his visitation schedule. On Halloween, the father asked the
8
CL-2022-0676 and CL-2022-0677
maternal grandfather to allow the father to take the child trick-or-
treating, but the maternal grandfather refused. The father asked if he
could accompany the maternal grandparents and the child when they
took him trick-or-treating, but the maternal grandfather told him that he
could not.
The father testified that, if the juvenile court vested him with
custody following the final dispositional hearing, he would want the
maternal grandparents to have continued contact with the child but that
he did not want them to have the same rights as a parent.
The father testified that, as a precaution against relapsing into
substance abuse, he had terminated all contact with anyone that he knew
who was using drugs. He said that he deals with stress by exercising at
a gym and by talking about his problems with his family, who constitute
his support group. The father testified that the mother's death because
of drugs and his own overdoses had scared him so badly that he would
never again use illicit drugs.
The maternal grandfather testified that the child was "doing great."
The maternal grandfather confirmed that he had not allowed the father
to have any time with the child that was not specified in the visitation
9
CL-2022-0676 and CL-2022-0677
order. He said that he did not think that it was in the child's best
interests to spend more time with the father. The maternal grandfather
testified that he thought it was too soon for the juvenile court to transfer
custody of the child to the father because, the maternal grandfather said,
he did not think that the father had demonstrated that he had changed
for a long enough period. The maternal grandfather testified that he had
not received any counseling regarding the mother's death because, he
said, he did not think he needed any.
After the parties rested at the final dispositional hearing, the
juvenile court asked the guardian ad litem if he had a recommendation.
The guardian ad litem stated that, in his opinion, the father had
demonstrated for a substantial period that he could maintain sobriety
and stability and that the juvenile court should transfer custody of the
child to the father and grant visitation to the maternal grandparents.
On April 11, 2022, the juvenile court entered identical judgments
in both the .01 action and the .02 action. In pertinent part, those
judgments stated that "while the child remains dependent until further
observation can occur, the Court can no longer say that this child needs
to remain removed from his father"; vested the father with sole legal and
10
CL-2022-0676 and CL-2022-0677
physical custody of the child; and granted the maternal grandparents
visitation with the child.
On April 25, 2022, the father filed identical postjudgment motions
in both the .01 action and the .02 action. Those postjudgment motions
asserted that the juvenile court should alter, amend, or vacate the
judgments for three reasons. First, the father asserted that the juvenile
court should alter, amend, or vacate the judgments insofar as they found
that the child remained dependent because, the father said, no evidence
indicated that the child remained dependent. Second, the father asserted
that the juvenile court should alter, amend, or vacate the judgments
insofar as they granted the maternal grandparents visitation because, he
said, they had not made a claim for visitation with the child. Third, he
asserted that the juvenile court should alter, amend, or vacate the
judgments insofar as they contained clerical errors.
On April 26, 2022, the maternal grandparents filed postjudgment
motions. 1 In their motions, the maternal grandparents asserted that the
juvenile court should vacate the judgment insofar as it vested the father
1The maternal grandparents had until April 26, 2022, to file their
postjudgment motions because April 25, 2022, the fourteenth day after
the entry of the final judgment, was a State holiday.
11
CL-2022-0676 and CL-2022-0677
with sole legal and physical custody because, they said, the father had
lived in his own house for only two months and because, they said, the
only treatment the father had received for his substance-abuse and
mental-health problems was a few teleconference visits with East
Alabama Mental Health Center regarding his substance-abuse problem.
In the alternative, the maternal grandparents asserted that the juvenile
court should amend the judgments to vest the father and the maternal
grandparents with joint legal and joint physical custody of the child, to
correct clerical errors in the judgments, and to state that the times
specified in the judgments were eastern time.
On April 28, 2022, the juvenile court entered orders granting the
father's and the maternal grandparents' postjudgment motions in part
and denying them in part. On May 6, 2022, the juvenile court entered an
amended judgment in the .01 action only. The amended judgment
corrected the clerical errors in the original judgment and specified that
the times in the amended judgment were eastern time but made no other
changes to the original judgment.
On May 20, 2022, the father filed postjudgment motions in both the
.01 action and the .02 action that challenged the May 6, 2022, amended
12
CL-2022-0676 and CL-2022-0677
judgment insofar as it granted visitation to the maternal grandparents.
Also on May 20, 2022, the father filed notices of appeal in both the .01
and the .02 actions; however, Rule 4(a)(5), Ala. R. App. P., suspended the
operative effect of those notices because the father's May 20, 2022,
postjudgment motions remained pending. On May 25, 2022, the juvenile
court entered in the .02 action the same amended judgment that it had
entered in the .01 action. The juvenile court did not rule on the father's
May 20, 2022, postjudgment motions within fourteen days after he filed
them; consequently, they were denied by operation of law. See Rule 1(B),
Ala. R. Juv. P. Thereafter, the father's notices of appeal became operative
pursuant to Rule 4(a)(5).
Standard of Review
In a dependency case in which the juvenile court has received
evidence ore tenus, an appellate court presumes that the juvenile court's
factual findings are correct. See J.C. v. Houston Cnty. Dep't of Hum. Res.,
313 So. 3d 1137, 1139 (Ala. Civ. App. 2020). This is so because the
juvenile court, unlike an appellate court, can directly observe the
witnesses and assess their demeanor and credibility. Id.13
CL-2022-0676 and CL-2022-0677
Clear and convincing evidence must support a finding of
dependency. Id. Clear and convincing evidence is evidence that, "when
weighed against evidence in opposition, will produce in the mind of the
trier of fact a firm conviction as to each essential element of the claim
and a high probability as to the correctness of the conclusion." § 6-11-
20(b)(4), Ala. Code 1975. "Proof by clear and convincing evidence requires
a level of proof greater than a preponderance of the evidence or the
substantial weight of the evidence, but less than beyond a reasonable
doubt." Id. An appellate court does not reweigh the evidence but, rather,
determines whether the juvenile court's findings of fact are supported by
evidence that the juvenile court reasonably could have found to be clear
and convincing. See K.S.B. v. M.C.B., 219 So. 3d 650, 653 (Ala. Civ. App.
2016).
Analysis
The father first argues that the maternal grandparents did not
prove by clear and convincing evidence that the child remained
dependent at the time of the custody disposition and that, therefore, the
juvenile court lacked jurisdiction to do anything other than to dismiss the
14
CL-2022-0676 and CL-2022-0677
dependency actions pertaining to the child and to allow the custody of the
child to be returned to the father. We agree.
A juvenile court may either hold its adjudicatory and dispositional
hearings on the same date or it may hold them on different dates. See 12-
15-311(a), Ala. Code 1975, ("If the juvenile court finds … that a child is
dependent, the juvenile court may proceed immediately, in the absence
of objection showing good cause or at a postponed hearing, to make proper
disposition of the case."); Rule 25(a), Ala. R. Juv. P. (stating that in
dependency actions, among other proceedings, "the juvenile court may
proceed immediately to a dispositional hearing after adjudication or may
set a dispositional hearing for a later date"). If the juvenile court holds
the adjudicatory and dispositional hearings on different dates, the
juvenile court lacks jurisdiction to make a custody disposition of a child
in a dependency action unless the child is in fact still dependent at the
time of the disposition. See K.C.G. v. S.J.R., 46 So. 3d 499, 502 (Ala. Civ.
App. 2010).
The maternal grandparents alleged that the child was dependent
because the mother was dead and the father was unable to discharge his
parental responsibilities to the child. See § 12-15-102(8)2., Ala. Code 1975
15
CL-2022-0676 and CL-2022-0677
(providing that a child who is without a parent, legal guardian, or legal
custodian willing and able to provide for the care, support, or education
of the child is dependent). The undisputed evidence at the final
dispositional hearing established that the father had not used illicit
drugs or alcohol since July 2020, which was approximately twenty
months before the final dispositional hearing; that he had maintained
employment for five months before the final dispositional hearing; that
he had maintained stable housing at the rental house for two months
before the final dispositional hearing; that he did not have any mental-
health problems that would prevent him from properly parenting the
child; and that the child had been safe during his unsupervised visits
with the father. Therefore, we conclude that the juvenile court could not
have reasonably been clearly convinced from the evidence introduced at
the final dispositional hearing that the child was still dependent. See
H.A.S. v. S.F., 298 So. 3d 1092, 1106 (Ala. Civ. App. 2019) (holding that
the evidence at a final dispositional hearing held five months after the
adjudicatory hearing was insufficient to clearly convince a juvenile court
that the child remained dependent). Therefore, the juvenile court did not
have jurisdiction to do anything other than to dismiss the dependency
16
CL-2022-0676 and CL-2022-0677
actions pertaining to the child and allow custody of the child to be
returned to the father. See J.A. v. C.M., 93 So. 3d 953, 955 (Ala. Civ. App.
2012) ("The only thing the juvenile court had jurisdiction to do after
finding that the children were not dependent was to dismiss the
dependency petition and to allow the custody of the children to be
returned to the mother and the father.").
The dissent asserts that the juvenile court reasonably could have
been clearly convinced that the child was dependent at the time of the
dispositional hearing, because, the dissent says, (1) the father had a
history of substance abuse, (2) the child had been in the custody of the
maternal grandparents for eighteen months prior to the final
dispositional hearing because of the father's substance-abuse problem,
(3) the juvenile court could have found that the father's denying that East
Alabama Mental Health Center had recommended that he undergo
inpatient substance-abuse treatment was not credible, (4) the father had
not attended any Narcotics Anonymous meetings for several months
before the final dispositional hearing, and (5) the ore tenus rule cloaks
the juvenile court's judgments with a presumption of correctness.
17
CL-2022-0676 and CL-2022-0677
Although the father has a history of substance abuse, the
undisputed evidence established that the father had not used illicit drugs
or alcohol for twenty months before the final dispositional hearing. The
undisputed evidence established that the father had been sober for two
months before the juvenile court held that initial hearing regarding the
maternal grandparents' dependency petition on September 29, 2020, but
had agreed at that hearing that the child was dependent at that time.
Thus, the undisputed evidence established that the father had not used
illegal drugs or alcohol during the eighteen months the child had been in
the pendente lite custody of the maternal grandparents. The fact that the
father has a history of drug use before August 2020 does not prove that
the child was dependent on the date of the dispositional hearing when
the undisputed evidence established that the father had been sober for
the twenty-month period immediately preceding the final dispositional
hearing. If a parent's history of substance abuse ipso facto renders his or
her child dependent, then no parent who has a history of substance abuse
could ever regain custody of his or her child no matter how long he or she
maintained sobriety.
18
CL-2022-0676 and CL-2022-0677
With regard to the possibility that the juvenile court could have
found that the father's denying that East Alabama Mental Health Center
had recommended that he undergo inpatient substance-abuse treatment
was not credible, the undisputed evidence established that he had been
sober for twenty months when the juvenile court held the dispositional
hearing; that undisputed evidence included the results of the father's
drug tests and, therefore, did not rest solely on the testimony of the
father. Hence, a credibility issue regarding the father's testimony that
East Alabama Mental Health Center had not recommended that he
undergo inpatient substance-abuse treatment would not have
constituted a basis for disregarding the undisputed evidence that the
father had been sober for the twenty-month period immediately
preceding the dispositional hearing. Moreover, inpatient substance-
abuse treatment is a means of achieving sobriety, but it does not
guarantee that a patient will not relapse into substance abuse. The
undisputed evidence in this case establishes that the father achieved
sobriety and maintained it for twenty months without undergoing
inpatient substance-abuse treatment. The undisputed evidence also
19
CL-2022-0676 and CL-2022-0677
established that the father had maintained sobriety despite his failing to
attend several Narcotics Anonymous meetings.
Finally, with respect to the dissent's contention that the ore tenus
rule mandates an affirmance of the juvenile court's judgments, we note
that the ore tenus rule does not apply when undisputed evidence
establishes the material facts. See Lawson v. Harris Culinary Enters.,
LLC, 83 So. 3d 483, 491 (Ala. 2011). In the present case, the material fact
was whether the father had achieved and maintained sobriety, and the
undisputed evidence established that he had. Therefore, the ore tenus
rule does not afford the juvenile court's judgments a presumption of
correctness in this case.
Turning now to the question of the award of visitation to the
maternal grandparents, although this court has held that a juvenile court
has jurisdiction to grant grandparent visitation despite a finding that the
child is not dependent when the grandparents have made a claim for
grandparent visitation that is sufficient to invoke the juvenile court's
subject-matter jurisdiction to grant grandparent visitation pursuant to §
12-15-115(a)(10), Ala. Code 1975, see M.G.D. v. C.B., 203 So. 3d 855, 859
(Ala. Civ. App. 2016), the maternal grandparents did not make such a
20
CL-2022-0676 and CL-2022-0677
claim in this case. When such a claim is not made and a child is not found
dependent, a juvenile court's judgment is void insofar as it purports to
grant grandparent visitation. See L.M. v. G.S., 243 So. 3d 822, 826 (Ala.
Civ. App. 2017). Accordingly, the juvenile court's judgments now before
us are void in their entirety. Because a void judgment will not support an
appeal, we dismiss the father's appeals with instructions to vacate its
judgments, to dismiss the dependency actions pertaining to the child, and
to allow the custody of the child to be returned to the father. Id.CL-2022-0676 -- APPEAL DISMISSED WITH INSTRUCTIONS.
CL-2022-0677 -- APPEAL DISMISSED WITH INSTRUCTIONS.
Moore, Edwards, Hanson, and Fridy JJ., concur.
Thompson, P.J., dissents, with opinion.
21
CL-2022-0676 and CL-2022-0677
THOMPSON, Presiding Judge, dissenting.
I disagree with the main opinion's holding that the evidence did not
support the judgment of the Lee Juvenile Court ("the juvenile court")
finding that the child remained dependent. The evidence indicates that
M.A. ("the father") has a history of abusing heroin, methamphetamine,
cocaine, and prescription medications. Because of that drug use, the
child, who was only four-and-a-half years old at the time of the March 30,
2022, hearing, had been in the custody of the maternal grandparents
since September 30, 2020, i.e., approximately 42 months by the time of
that hearing. The father's medical records indicate that he refused in-
patient, residential substance-abuse treatment and instead attended
outpatient treatment. The father insisted that his medical records are
incorrect and that, in spite of the nature of the substances he abused and
his repeated hospitalizations, he was told that he did not need in-patient
treatment. The father also disputed that part of his medical records that
stated that he had minimized the severity of his substance-abuse
addiction. The juvenile court was in the best position to observe the
witnesses as they testified and to evaluate their demeanor and
credibility. It is the province of the juvenile court, as the trier of fact, to
22
CL-2022-0676 and CL-2022-0677
resolve factual disputes in the evidence. Ex parte Fann, 810 So. 2d 631,
633 (Ala. 2001).
"Because appellate courts do not weigh evidence, particularly
when 'the assessment of the credibility of witnesses is
involved,' Knight [v. Beverly Health Care Bay Manor Health
Care Ctr.], 820 So. 2d [92,] 102 [(Ala. 2001)], we defer to the
trial court's factual findings. 'The ore tenus rule reflects this
deference; it accords a presumption of correctness to the trial
court's findings because of that court's unique ability to
observe the demeanor of witnesses.' Id.; see also Fitzgerald v.
Jeter, 428 So. 2d 84, 85 (Ala. Civ. App. 1983), and Ex parte
Fann, 810 So. 2d 631, 633 (Ala. 2001)."
J.C. v. State Dep't of Hum. Res., 986 So. 2d 1172, 1185 (Ala. Civ. App.
2007). See also J.P. v. Calhoun Cnty. Dep't of Hum. Res., 222 So. 3d 1177,
1179 (Ala. Civ. App. 2016) (" 'The juvenile court heard ore tenus evidence
regarding dependency; therefore, its judgment is accorded a strong
presumption of correctness.' " (quoting A.M.W. v. A.G.M., 189 So. 3d 75,
77 (Ala. Civ. App. 2015))); and A.T. v. A.G., 81 So. 3d 385, 389 (Ala. Civ.
App. 2011) (" ' "[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." ' "
(quoting Ex parte Fann, 810 So. 2d 631, 636 (Ala. 2001))).
23
CL-2022-0676 and CL-2022-0677
In addition to the disputed facts discussed above, the record
indicates that at the time of the hearing in this matter, the father had
been living independently for only two months. He also admitted at the
hearing on the merits that he had not attended a Narcotics Anonymous
meeting since October or November 2021, i.e., four to five months earlier.
The juvenile court was not required to believe the father's assertions that
he was capable of independently caring for this very young child, and it
was free to consider all of the evidence presented to it. " 'In ore tenus
proceedings, the trial court is the sole judge of the facts and of the
credibility of the witnesses, and it should accept only that testimony
which it considers worthy of belief.' " Ex parte R.E.C., 899 So. 2d 272, 279
(Ala. 2004) (quoting Clemons v. Clemons, 627 So. 2d 431, 434 (Ala. Civ.
App. 1993)). Although the main opinion might have reached a different
result than did the juvenile court, the record contains evidence
supporting the juvenile court's dependency determination. Montgomery
Cnty. Dep't of Hum. Res. v. T.S., 218 So. 3d 1252, 1268 (Ala. Civ. App.
2016); L.R.M. v. D.M., 962 So. 2d 864, 873 (Ala. Civ. App. 2007). Given
the evidence in the record and the fact that this court may not reweigh
the evidence that was presented to the juvenile court, I conclude that the
24
CL-2022-0676 and CL-2022-0677
main opinion has impermissibly reweighed the evidence presented to the
juvenile court and that it errs in reversing the judgment in this matter.
See Ex parte R.E.C., 899 So. 2d at 279 (" '[A]n appellate court may not
substitute its judgment for that of the trial court. To do so would be to
reweigh the evidence, which Alabama law does not allow.' Ex parte Foley,
864 So. 2d 1094, 1099 (Ala. 2003) (citations omitted)).
I note that the father has not argued that the juvenile court's
dependency determination is inconsistent with an award of custody to
him. In fact, the Alabama Juvenile Justice Act (" t h e AJJA" ), § 12-15-
101 et seq., Ala. Code 1975, allows the juvenile court to make any
custodial disposition that is in the best interests of a dependent child. §
12-15-314, Ala. Code 1975. One of the goals of the AJJA is, in part, to
reunite a parent and a child "as safely as possible." § 12-15-101(b)(3), Ala.
Code 1975. "The power to declare a child dependent, once exercised by
the juvenile court, carries with it the authority to dispose of the custody
of the child in any manner the juvenile court deems in the best interests
of the child, see Ala. Code 1975, § 12-15-314(a)(3)c., …." G.H. v. Cleburne
Cnty. Dep't of Hum. Res., 62 So. 3d 540, 551 (Ala. Civ. App. 2010) (Moore,
J., concurring in the result). In its judgment, the juvenile court stated
25
CL-2022-0676 and CL-2022-0677
that "the child remains dependent until further observation can occur."
(Emphasis added.) The child is only four-and-a-half-years old, and, with
regard to his being placed in the father's home, the evidence supports a
conclusion that the child still needs "the care and protection of the State."
§ 12-15-102(8)8., Ala. Code 1975 (defining the term "dependent child").
The evidence supports a conclusion that the father has not been stable
for a sufficiently long period of time to ensure the safety of the child in
his care, and, therefore, that the child remains dependent. I would affirm
the juvenile court's dependency determination.
If a juvenile court finds a child to be dependent, § 12-15-314(a)(1),
Ala. Code 1975, allows the juvenile court, when it makes a custodial
disposition, to " '[p]ermit the child to remain with the parent, legal
guardian, or other legal custodian of the child, subject to conditions and
limitations as the juvenile court may prescribe.' " J.W. v. T.D., 58 So. 3d
782, 790 (Ala. Civ. App. 2010) (quoting § 12-15-314(a), Ala. Code 1975).
In this case, the juvenile court imposed conditions and limitations upon
the award of custody of the child to the father pursuant to its dependency
determination. I believe the specification in the April 11, 2022,
dependency judgment that the child "remains dependent until further
26
CL-2022-0676 and CL-2022-0677
observation can occur" itself constitutes a limitation or condition on the
award of custody of the dependent child to the father. That condition or
limitation demonstrates that the juvenile court intends to continue to
supervise the matter to ensure the safety and best interests of the child.
Further, that limitation or condition on the award of custody to the father
is consistent with the well-settled law that the best interests of a child
are paramount in a dependency action, explaining:
" '[I]t is the [juvenile] court's duty to scrupulously guard and
protect the interests of children,' Ex parte Fann, 810 So. 2d
631, 638 (Ala. 2001), and the stated purpose of the Alabama
Juvenile Justice Act, codified at Ala. Code 1975, § 12-15-101
et seq., 'is to facilitate the care [and] protection ... of children
who come under the jurisdiction of the juvenile court.' § 12-
15-101(a)[, Ala. Code 1975].' "
Ex parte M.J.W., 62 So. 3d 531, 536 (Ala. Civ. App. 2010). See also W.T.M.
v. S.P., 889 So. 2d 572, 580 (Ala. Civ. App. 2003) (Murdock, J., with
Thompson and Pittman, JJ., concurring in the result) ("[W]e have long
stated in both child-custody and dependency cases that the primary
concern is the best interests and welfare of the child.").
Moreover, in its April 11, 2022, judgment, the juvenile court set
forth other conditions and limitations on the award of custody to the
father. First, the juvenile court specified that if C.S. and A.S. ("the
27
CL-2022-0676 and CL-2022-0677
maternal grandparents") asked the father to submit to a drug screen "at
any time," the father was required do so within 48 hours. In addition, the
father was ordered to sign releases making the results of any drug
screens available to the maternal grandparents. In its April 11, 2022,
judgment, the juvenile court also ordered that if the maternal
grandparents were willing to pay for family counseling, the father was
required to "make reasonable efforts to attend and participate" in that
counseling. The conditions imposed by the juvenile court in its April 11,
2022, judgment provide further support for the conclusion that the
juvenile court did not err in finding the child dependent. I also note that
the father has not challenged on appeal the imposition of those conditions
and limitations set forth in the juvenile court's dependency judgment.
The father also argued that the juvenile court lacked jurisdiction to
award C.S. and A.S. ("the maternal grandparents") visitation with the
child. The father contends that the maternal grandparents did not assert
a claim for visitation with the child. However, as this court did in M.G.D.
v. C.B., 203 So. 3d 855, 857 (Ala. Civ. App. 2016), I conclude that the issue
was sufficiently presented to the juvenile court during the hearing in the
matter. Moreover, where, as here, a child is determined to be dependent,
28
CL-2022-0676 and CL-2022-0677
a juvenile court "may make any other order as the juvenile court in its
discretion shall deem to be for the welfare and best interests of the child."
§ 12-15-314(a)(4), Ala. Code 1975. I conclude that the evidence supports
the juvenile court's dependency finding, and, therefore, that the juvenile
court had jurisdiction to enter that part of its order awarding the
grandparents visitation with the child so as to allow the child to maintain
a relationship with the family members who had reared him since June
2020. 2 I would affirm the juvenile court's judgment.
2In his appellate brief, the father raises arguments concerning the
Grandparent Visitation Act, § 30-3-4.2, Ala. Code 1975, and his rights to
refuse visitation to the child's grandparents. I do not reach those
arguments because I conclude that the juvenile court could properly
award the grandparents a schedule of visitation pursuant to its
dependency jurisdiction.
29