L.A.R. v. J.B.R. (Appeal from Madison Juvenile Court: JU-22-968.01). ( 2024 )

Rel: April 19, 2024
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, 2023-2024
_________________________
CL-2023-0338
_________________________
L.A.R.
v.
J.B.R.
Appeal from Madison Juvenile Court
(JU-22-968.01)
HANSON, Judge.
L.A.R. ("the mother") appeals from a judgment of the Madison
Juvenile Court ("the juvenile court") that, among other things, found her
child, B.L.G. ("the child"), dependent and awarded custody of the child to
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J.B.R. ("the stepfather"). The judgment also found the mother in
contempt and ordered the mother to pay child support.
The record, stemming from the stepfather's filing of a dependency
petition and a subsequent dependency hearing on May 9, 2023, reveals
the following facts. The child was born in 2007 of the mother's
relationship with R.G. ("the father"). In 2013, when the child was
approximately six years old, the stepfather married the mother, who had
been awarded sole custody of the child. The child was 16 years old at the
time of the May 9, 2023, dependency hearing. The stepfather testified
that he had been the child's father figure since he began his relationship
with the mother. The stepfather stated that he had never met the father
and that, in the time he has known the child, the father had had no
contact or relationship with the child.
The mother did not appear at the dependency hearing. At the
beginning of the hearing, in response to questions from the juvenile court
regarding the mother's absence, the mother's attorney told the juvenile
court that she had informed the mother of the date and time of the
dependency hearing. The mother's attorney stated that she had had
regular contact with the mother until 10 days before the May 9, 2023,
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dependency hearing. The mother's guardian ad litem informed the
juvenile court that she had attempted to contact the mother through mail
and by telephone, but, she said, the mother had never returned those
telephone calls or contacted her. The mother's guardian ad litem also
represented to the juvenile court that she had attempted to locate the
mother through an attorney who represented the mother in a criminal
matter, but that that attorney had had no contact with the mother.
The stepfather testified that the mother has been diagnosed with
schizophrenia and bipolar disorder. The records from the mother's
psychiatrist state that the mother has a "schizoaffective disorder, bipolar
type," anxiety, and a sleep disorder that causes insomnia. Some of the
records also state that the mother had substance-abuse disorders.
According to the stepfather, the mother managed her mental-
health symptoms and medications well until sometime in 2015, when, he
said, she began taking stimulant prescription medications. The
stepfather explained that, since 2015, the mother has had periods in
which she did not take her mental-health medications, specifically
lithium, as prescribed and that, beginning in 2015, the mother began self-
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medicating by obtaining prescribed stimulant medications, such as
Adderall, from various doctors.
The stepfather testified that in 2019, the mother had an episode in
which she was in a state of psychosis. During that episode, the mother
exhibited paranoid and angry outbursts. The stepfather also stated that,
during that episode, the mother made many social-media posts that were
angry and/or bizarre in nature. Overall, the stepfather said, the mother's
conduct during that episode had caused the child pain and
embarrassment.
Evidence in the record demonstrates that another mental-health
episode like the one the mother experienced in 2019 occurred in 2021; the
mother exhibited similar conduct in both episodes. During the 2021
episode, the mother was hospitalized for approximately two months. In
addition, at one point in 2021 when the mother was at home alone and
speaking with the child, the mother broke a plate over her own head,
causing injury to herself that resulted in another brief hospitalization.
The stepfather described the mother's behavior when she was not
appropriately taking her mental-health medications and was "in
psychosis" as grandiose; according to the stepfather, she often states that
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she is a prophet of God or that she receives instructions directly from
God. He said that the mother also tends to believe that most women are
prostitutes and that many men are frequenting those "prostitutes." When
in that state, according to the stepfather, the mother often made 15 to 20
social-media posts per day and was known to send a series of messages
through text or social-media sites to the stepfather and the child. The
stepfather testified about those social-media posts and messages, and he
submitted into evidence voluminous exhibits depicting the mother's
social-media posts and her messages to him and to the child. That
evidence demonstrates that, when her mental-health condition is not
appropriately treated, the mother targets certain people in her life, such
as the stepfather, family friends who have been supportive of the child,
and a doctor who refused to continue prescribing stimulant medications
to the mother, in social-media posts and messages that are rude, that
contain false accusations, and that are occasionally threatening. The
mother has engaged in fits and "rages" toward the parents of the child's
friends or fellow team members. The child is a skilled baseball player.
The mother's threatening conduct directed at the parents of other team
members has caused the child to be removed from at least one team.
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The stepfather is an aerothermal engineer with a government
security clearance. The stepfather testified that the mother has
threatened to endanger his job and to damage his security-clearance
rating. In furtherance of that threat, he said, the mother had made
threatening and damaging social-media posts about him on his
employer's social-media pages.
In August 2022, the stepfather learned that the mother was having
an affair with T.J., who the stepfather described as a local rapper and
barber. The stepfather testified that the mother had informed him that
T.J. was a member of a gang and that he had been arrested for the
distribution of illegal drugs. The mother briefly stopped the affair after
the stepfather learned of it. However, according to the stepfather, in late
September and October 2022, the mother was in and out of the family
home, spending a great deal of her time with T.J. The stepfather testified
that in the fall of 2022, the mother missed all of the son's football games.
At some point in November 2022, a divorce action was commenced
by one of the parties. No documentation pertaining to the divorce action
is contained in the record on appeal.
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On November 8, 2022, the mother sent the stepfather a series of
texts and social-media messages -- the stepfather estimated he received
"hundreds" of messages from the mother that day -- through various
platforms in which the mother criticized the stepfather and, among other
things, made allegations of inappropriate sexual conduct against him. In
addition, in that long series of messages, the mother made many religious
statements, claimed to be a prophet, and cursed frequently. Several of
the messages could be interpreted as threatening in nature. In response
to those communications from the mother, the stepfather filed a motion
seeking a protection-from-abuse ("PFA") order, apparently as a part of
the divorce action, and, on November 9, 2022, that motion was granted.
The November 9, 2022, PFA order required the mother to leave the family
home and to have no contact with the stepfather or the child.
It is not clear whether the mother was living at or visiting the
family home on November 9, 2022, the day the PFA order was entered.
However, on that day, the stepfather called law-enforcement officers for
assistance in removing the mother from the family home pursuant to the
PFA order. The stepfather testified that although law-enforcement
officers led the mother away from the home on November 9, 2022, she
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returned to the home within 30 minutes and damaged a door frame by
kicking in the door to gain access to the family home. The stepfather said
that when the mother entered the family home on November 9, 2022, he
barricaded himself in a bedroom; he also contacted law-enforcement
officers again. He stated that he then heard the mother searching for
something in the kitchen. The mother returned to the area outside the
bedroom in which the stepfather was barricaded and used a knife to
attempt to enter that bedroom. Photographs of the damage the mother
made to the outside door and door frame and the bedroom door were
admitted into evidence. Law-enforcement officers arrived at the family
home before either party sustained any injuries. It is not clear whether
the mother was arrested that night or the nature of any charges upon
which she might have been arrested. The record contains references to
an attorney representing the mother in a pending criminal matter. The
child was not present in the home on November 9, 2022.
At approximately the same time as the entry of the November 9,
2022, PFA order, the mother posted on social media claims that T.J. had
broken the windows in her vehicle and had injured her with either a large
knife or a machete. She also posted photographs of a cut to her head and
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of her black eye, apparently as proof of her claims against T.J. The
mother's relationship with T.J. appears to have ended at or near that
time. The stepfather testified that, at the time of the final hearing, the
mother was living with a new boyfriend.
On November 16, 2022, the stepfather filed a petition in the
juvenile court in which he alleged that the child was dependent as a
result of the mother's mental illness. The stepfather sought an award of
custody of the child. The juvenile court appointed a guardian ad litem for
the child and a separate guardian ad litem to represent the mother.
On January 9, 2023, the juvenile court held a hearing at which the
mother was not present. On January 10, 2023, the juvenile court entered
an order in which it awarded pendente lite custody of the child to the
stepfather and directed the mother to participate in color-code drug
screening and to refrain from contacting the child. In that order, the
juvenile court specifically stated that any failure by the mother to appear
for a scheduled drug screen would result in the juvenile court considering
the result of that drug screen to be positive for drugs or alcohol.
Also on January 10, 2023, the mother filed a handwritten "motion
for a rehearing" in which she averred that she had shown up for court
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one day late and set forth several reasons for her confusion regarding the
correct date for the pendente lite hearing on January 9, 2023. The
juvenile court denied that motion on January 12, 2023.
The mother continued to post on social media about the child, and
some of those posts threatened anyone she believed might be supporting
the stepfather's claim seeking custody of the child and/or assisting the
stepfather in caring for the child. On January 29, 2023, the child received
another series of angry messages from the mother in which she criticized
the child, the child's grades, and the fact that that child was living with
the stepfather. In those messages, the mother used abusive language and
said, among other things, that she "could not have asked for a worse
[child]," and that she was disowning the child. The stepfather testified
that the child was distressed when he received those messages. The
stepfather informed the child's guardian ad litem about the mother's
January 29, 2023, messages to the child, and the child's guardian ad
litem agreed with the stepfather that the child should "block" the
mother's ability to message him. At approximately that same time, the
mother began directing abusive messages and social-media posts toward
a mother of a child who was on the child's baseball team.
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The stepfather also testified that the mother had made numerous
unsuccessful attempts to contact the child in late December 2022 and
January 2023 either by text or through a social-media platform. 1 He
stated that the mother's attempts to communicate with the child were
intermittent for a brief period after January 2023, but that the number
of those attempts increased in March 2023 and April 2023, around the
time of the child's birthday.
On February 22, 2023, the stepfather filed a motion seeking to have
the mother held in contempt for, among other things, continuing to
attempt to contact the child in violation of the pendente lite custody order
and for failing to enroll in color-code drug screening. On February 23,
2023, the juvenile court entered an order in which it scheduled a hearing
on the contempt motion and ordered the mother to begin complying with
its orders, including the pendente lite custody order that prohibited her
from contacting the child.
The stepfather testified that he had been active in taking care of
the child during the parties' marriage, and, he said, in the last few years,
1The stepfather did not explain how he learned that the mother had
attempted to contact the child.
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he had been the child's primary caretaker. He stated that because of the
mother's mental illness, he had been the one to take the child to doctor's
and orthodontist's appointments and that he had attended all of the
child's school or extra-curricular events and meetings. According to the
stepfather, the mother receives approximately $880 per month in Social
Security disability benefits, she earns approximately $1,500 per month
as an aesthetician, and he gives her $185 per week; it is not clear whether
the weekly payment from the stepfather is a pendente lite amount of
alimony ordered as a part of the divorce action pending between the
parties. The stepfather was unaware whether the mother receives any
form of financial support for the child from the child's father. He stated
that the mother had made no contribution toward the support of the child
during the time the child has been living with him.
The child's maternal grandfather, R.S.B. ("the maternal
grandfather"), testified that he traveled from his home in St. Petersburg,
Florida, to testify in support of the stepfather's claim seeking custody of
the child. The maternal grandfather described witnessing behaviors by
the mother that were similar to those that had been described by the
stepfather in his testimony and evidenced by the exhibits submitted into
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evidence as a part of the dependency action. The maternal grandfather
did not believe that the child would be safe in the mother's custody. He
testified that the stepfather and the child have a great, supportive
relationship and that he had no concerns about the stepfather's ability to
care for the child. The maternal grandfather testified that he and the
stepfather work well together and that he had enjoyed a visit that the
child had made to Florida to visit him over the summer.
The stepfather's attorney briefly testified to establish that the
stepfather was seeking an award of $4,000 as an attorney fee because of
the mother's failure to comply with discovery and her failure to comply
with the PFA order; the attorney indicated that that fee was reasonable
under the circumstances of this litigation. Also, at the close of the
dependency hearing, the child's guardian ad litem recommended that the
stepfather be awarded custody of the child and that the mother have no
contact with the child.
At the end of the May 9, 2023, dependency hearing, the juvenile
court announced that it found the child dependent and that it would
award custody of the child to the stepfather. The juvenile court also
stated that, because of the tone of the mother's recent threatening
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messages, any visitation between the child and the mother would be
detrimental to the child. However, the juvenile court reminded the
parties that its decision could be modified when the mother returned to
mental-health counseling and appropriately addressed her mental-
health issues; it noted that the mother could then filed a petition seeking
to modify the custody or visitation provisions of the written judgment it
would enter.
On May 11, 2023, although the mother was represented by counsel,
she filed in the juvenile court a pro se, handwritten motion that, in
substance, was a postjudgment motion requesting a new trial. 2 In that
motion, the mother stated that her telephone had broken and that it was
an "honest mistake" that she had missed the May 9, 2023, dependency
hearing; she requested that the juvenile court conduct another hearing
on the issue of the child's dependency.
On May 16, 2023, the juvenile court entered a judgment in which it
found the child dependent, awarded custody of the child to the stepfather,
2The mother has made no argument that that motion should be
interpreted in any other manner or that it was a motion to continue.
Accordingly, any such argument is waived. See Ex parte Riley, 464 So.
2d 92, 94 (Ala. 1985) ("[F]ailure to argue an issue in [a] brief to an
appellate court is tantamount to the waiver of that issue on appeal.").
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ordered the mother to pay child support, and specified that the mother
have no visitation or contact with the child. In that judgment, the
juvenile court also determined that the mother was in contempt for her
failure to comply with certain of its orders during the pendency of the
dependency action.
Also on May 16, 2023, the juvenile court, the juvenile court entered
an order denying the mother's May 11, 2023, postjudgment motion. See
Taylor v. Methodist Home for Aging, [Ms. SC-2022-0681, May 12, 2023]
___ So. 3d ___, ___ (Ala. 2023) (explaining that a postjudgment motion
filed before the entry of the final judgment was deemed effective on the
date the final judgment was entered); and New Addition Club, Inc. v.
Vaughn, 903 So. 2d 68, 72 (Ala. 2004) ("[A] postjudgment motion filed
before a judgment is entered is not a nullity; it becomes effective when
the judgment is entered."). The mother filed a timely notice of appeal to
this court on May 17, 2023.
The mother raises on appeal arguments challenging the sufficiency
of the evidence supporting the juvenile court's custody and visitation
awards and its finding that she was in contempt. With regard to those
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issues, in its May 16, 2023, judgment, the juvenile court made the
following factual findings:
"5. Testimony was presented that the mother has
extensive mental-health issues, including being diagnosed
with schizoaffective disorder and bipolar disorder. The
evidence and testimony presented demonstrated that the
mother has failed to maintain her prescribed medications.
The mother's untreated mental health has resulted in the
mother demonstrating behaviors that endanger herself and
others, which include, but are not limited to: self-medicating;
transient behavior; paranoia; grandiose behavior including
referencing herself as 'God' and being a prophetess,
promiscuity, and extreme social-medial outbursts and verbal
tirades directed toward others. The mother has failed to
maintain housing and is now residing with her second
paramour since the filing of this action. Certified probate-
court records were introduced that the mother was committed
[to a hospital or other facility for psychiatric treatment] in
2019 and 2021 for exhibiting similar behavior.
"6. The court finds that the mother's disregard for
maintaining her mental-health treatment and/or taking her
medications as prescribed have directly and negatively
impacted this minor child. The minor child has been removed
from multiple sports teams and activities due to the mother's
erratic and abusive behavior with other adults and coaches
involved therein. The mother's behaviors have resulted in the
minor child being ostracized from other stable and positive
influences in his life. The court finds, from the evidence and
testimony, that the only stability this minor child has had in
his life for many years is the [stepfather]. The [stepfather]
has, for the last ten (10) years, provided for the minor child's
emotional, educational, extracurricular, and medical needs,
including providing the minor child with a safe, stable, and
loving home.
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"7. The court finds that the mother has, throughout the
pendency of this matter, continuously violated the orders of
this court. The evidence and testimony presented indicated
that the mother has contacted the minor child in violation of
the no-contact order and that she has failed to comply with
the court's order that she immediately enroll in color-code
drug and alcohol testing. The evidence and testimony
submitted to the court included a barrage of text messages
sent from the mother to the minor child wherein the mother
repeatedly told the minor child that she disowned him and
that she could not have picked a worse son."
We first address the mother's contention that the juvenile court
erred in finding the child dependent. Under the Alabama Juvenile
Justice Act, § 12-15-101 et seq., Ala. Code 1975, a "dependent child" is
"[a] child who has been adjudicated dependent by a juvenile
court and is in need of care or supervision and meets any of
the following circumstances:
".…
6. Whose parent, legal guardian, legal custodian, or
other custodian is unable or unwilling to discharge his or her
responsibilities to and for the child.
"'….
"8. Who, for any other cause, is in need of the care and
protection of the state."
§ 12-15-102(8)a., Ala. Code 1975.
A dependency determination must be supported by clear and
convincing evidence. § 12-15-310, Ala. Code 1975. "Clear and convincing
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evidence" is " '[e]vidence 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.' " L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala.
Civ. App. 2002) (quoting § 6-11-20(b)(4), Ala. Code 1975). "[M]atters of
dependency are within the sound discretion of the [juvenile] court, and a
[juvenile] 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." J.S.M. v. P.J., 902 So. 2d 89, 95 (Ala.
Civ. App. 2004).
In her argument submitted to this court, the mother does not
appear to dispute that, in the past, her conduct was such as to render the
child dependent. However, she argues that the evidence at the May 9,
2023, dependency hearing focused on her "past behaviors," and that the
record was devoid of evidence of the mother's condition and
circumstances at the time of the dependency hearing. As the mother
argues, a juvenile court's determination of whether a child is dependent
"must be based on [a parent's] current circumstances." C.S. v. Morgan
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Cnty. Dep't of Hum. Res., [Ms. CL-2022-1246, Jan. 31, 2024] ___ So. 3d
___, ___ (Ala. Civ. App. 2024).
In C.S., supra, at the time of the final haring, the mother was
making efforts to adjust her circumstances to meet the child's needs, and,
as part of those efforts, she was attending a mental-health-rehabilitation
program at which she resided. However, that program would not allow
the child at issue in C.S. to live with the mother, and evidence supported
the conclusion that the mother had not yet completed the rehabilitation
program or sufficiently overcome or addressed her mental-health issues.
Therefore, this court affirmed the judgment finding the child dependent
as to the mother. C.S., ___ So. 3d at ___.
We agree with the mother that much of the evidence presented to
the juvenile court related to the mother's behaviors occurring in 2019 and
2021. That evidence tended to establish a pattern in the mother's
behavior when she was not properly seeking mental-health treatment
and complying with her prescription-medication regimen. It was
presented to establish that that mother was demonstrating similar
behavior in 2022 and 2023 and, therefore, that she was not complying
with her mental-health treatment. The stepfather presented evidence
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regarding the mother's conduct in the second half of 2022 that was
reflective of her behaviors in the past. In addition, he testified that that
conduct had continued into 2023. For example, on January 29, 2023, only
two months before the dependency hearing, the mother sent a series of
messages to the child in which she criticized the child and told him that
he was no longer her son. The stepfather also testified that the mother
had continued to attempt to contact the child in March and April 2023 in
violation of the no-contact order.
The mother has cited to no supporting case law for a proposition
that the stepfather's evidence concerning her behaviors from the summer
of 2022 through March and April 2023 was too remote in time to support
the juvenile court's May 16, 2023, dependency determination based on
the mother's current circumstances. There is no established formula for
or time limitation on the determination of what constitutes "current
circumstances" in the context of a dependency action. The juvenile court
noted that the mother's grandiose and sometimes threatening behaviors
and outbursts had continued during the pendency of the dependency
action. The mother presented no evidence to challenge the evidence
presented by the stepfather. Given the specific facts of this case, we
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cannot say that the mother has demonstrated that, in finding the child
dependent, the juvenile court failed to consider her current
circumstances.
As a separate part of her argument on this issue, the mother also
contends that the juvenile court could not find the child dependent
because the child's father was not served in the dependency action. We
note that the stepfather testified that he did not know the whereabouts
of the child's father, except that he had last heard that the father was
living in Virginia. Regardless, the mother may not assert arguments on
behalf of a third party. B.M. v. Jefferson Cnty. Dep't of Hum. Res., 183
So. 3d 157, 160 (Ala. Civ. App. 2015) (rejecting a mother's argument that
a judgment terminating her parental rights was erroneous because the
children's father had not been properly served); see also Ex parte Izundu,
568 So. 2d 771, 772 (Ala. 1990); K.S. v. K.P., 372 So. 3d 549, 551 (Ala.
Civ. App. 2022).
The mother also challenges that part of the May 16, 2023, judgment
that suspended her visitation and contact with the child.
"It is well settled that a trier of fact has broad discretion to
determine a parent's right to visitation with a dependent child
and that the best interests and welfare of the child is the
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primary consideration in determining whether to award
visitation and, if so, the extent of that visitation."
Y.N. v. Jefferson Cnty. Dep't of Hum. Res., 67 So. 3d 76, 82 (Ala. Civ.
App. 2011). As the mother recognizes, a juvenile court may place
restrictions on a parent's visitation with a dependent child. C.O. v. S.O.,
85 So. 3d 460, 465-66 (Ala. Civ. App. 2011). Any restrictions on a
noncustodial parent's visitation should constitute the least restrictive
means to protect the child and his or her best interests. K.D. v. Jefferson
Cnty. Dep't of Hum. Res., 88 So. 3d 893, 897 (Ala. Civ. App. 2012).
In C.O. v. S.O., supra, this court explained:
"[T]he juvenile court's discretion in awarding visitation
'should be exercised with a view towards the policy of
preserving relationships between parents and children
whenever possible.' M.R.D. v. T.D., 989 So. 2d 1111, 1118 (Ala.
Civ. App. 2008) (concluding that, given the facts of that case,
the suspension of visitation was 'overly restrictive'). This
court has held that 'the trial court may not use an overbroad
[visitation] restriction that does more than necessary to
protect the child.' Pratt v. Pratt, 56 So. 3d [638,] 641 [(Ala.
Civ. App. 2010)]. As always, the primary consideration in
determining a noncustodial parent's visitation rights is the
best interests of the child; our supreme court has recently
reiterated that '[a] trial court in establishing visitation
privileges for a noncustodial parent must consider the best
interests and welfare of the minor child and, where
appropriate, as in this case, set conditions on visitation that
protect the child.' Ex parte Thompson, 51 So. 3d 265, 272 (Ala.
2010)."
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85 So. 3d at 466. Any limitation on a parent's rights of visitation with his
or her child "must be supported by evidence that the misconduct of the
parent is detrimental to the child." Carr v. Broyles, 652 So. 2d 299, 304
(Ala. Civ. App. 1994). 3
In Minchew v. Mobile County Department of Human Resources,
504 So. 2d 310, 311 (Ala. Civ. App. 1987), the juvenile court suspended
the mother's visitation with her child, and this court affirmed, noting,
among other things, that the denial of visitation is permissible if the
evidence shows that it is in the child's best interests. In another case, this
court affirmed an award of supervised visitation with a child when "the
juvenile court reasonably could have determined from the evidence in the
record that the mother had routinely placed the child in harm's way by
allowing criminal and dangerous activity to occur in the presence of the
child." K.D. v. Jefferson Cnty. Dep't of Hum. Res., 88 So. 3d 893, 898 (Ala.
Civ. App. 2012).
3We note that the standard for the determination of an award of
visitation with a dependent child is the same standard as that applied in
awarding visitation in a divorce action. K.D. v. Jefferson Cnty. Dep't of
Hum. Res., 88 So. 3d 893, 897 (Ala. Civ. App. 2012) (citing R.B.O. v.
Jefferson Cnty. Dep't of Hum. Res., 70 So. 3d 1286, 1288-91(Ala. Civ.
App. 2011).
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The record on appeal contains evidence indicating that the child has
been distressed by the mother's contacts with him, has been embarrassed
by her volatile outbursts, and that certain coaches and parents have
elected to remove the child from a team rather than continue to be
exposed to the mother. "This court has held that a noncustodial parent's
visitation rights may be restricted ' "in order to protect children from
conduct, conditions, or circumstances surrounding their noncustodial
parent that endanger the children's health, safety, or well-being." ' "
Wells v. Tankersley, 244 So. 3d 975, 984 (Ala. Civ. App. 2017) (quoting
B.F.G. v. C.N.L., 204 So. 3d 399, 404 (Ala. Civ. App. 2016), quoting in
turn Pratt v. Pratt, 56 So. 3d 638, 641 (Ala. Civ. App. 2010)). The juvenile
court explicitly determined that the mother's failure to adequately
manage her mental-health conditions have "directly and negatively"
impacted the child. Thus, the juvenile court concluded that the mother's
conduct had had such a detrimental effect on the child that suspending
her visitation and contact with the child would serve the child's best
interests. Carr v. Broyles, supra; see also Lester v. Lester, [Ms. 2210282,
Dec. 22, 2022] ___ So. 3d ___, ___ (Ala. Civ. App. 2022) ("Although we do
not hold that a trial court cannot place limits on a parent's visitation
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unless the children involved have first suffered harm a result of the
parent's misconduct, the record must disclose that the limitations
imposed on a parent's visitation are to protect the children from
anticipated harm resulting from the noncustodial parent's behavior.");
and Laurent v. Laurent, 434 So. 2d 266, 268-69 (Ala. Civ. App. 1983)
(affirming a judgment that, in part, temporarily suspended a mother's
visitation "so that an effort could be made to improve the child's
emotional health and to eliminate the harmful conflicts between the
grandparents and the mother"). Given the evidence in the record
concerning the mother's behaviors, we conclude that the evidence
supports the juvenile court's determination regarding suspending the
mother's visitation and that the mother has failed to show error with
regard to this issue.
The mother also contends that the suspension of her right to visit
or contact the child is the equivalent to a termination of her parental
rights. This court has considered a similar argument and rejected it. See
Y.N. v. Jefferson Cnty. Dep't of Hum. Res., supra. In reaching its holding
in Y.N., this court stated that the mother could seek to modify the
judgment that denied or suspended her claim for visitation. Y.N., 67 So.
25CL-2023-0338
3d at 83-84. Similarly, as the juvenile court noted at the end of the May
9, 2023, dependency hearing, the mother in this case can seek a
modification of the May 16, 2023, judgment if she seeks appropriate
mental-health treatment and maintains that treatment such that her
behaviors are controlled and appropriate. The mother is incorrect that
the current suspension of her visitation and contact with the child
constitutes a termination of her parental rights. Y.N., supra.
The mother next argues that the juvenile court erred in finding her
in contempt. Rule 70A, Ala. R. Civ. P., governs a claim or action alleging
contempt. In its judgment, the juvenile court determined the mother to
have been in constructive, civil contempt of its orders. " 'Civil contempt'
means willful, continuing failure or refusal of any person to comply with
a court's lawful writ, subpoena, process, order, rule, or command that by
its nature is still capable of being complied with." Rule 70A(a)(2)(D), Ala.
R. Civ. P. Under Rule 70A, the concept of mitigation specifically pertains
to a finding of direct contempt. Rule 70A(b)(2), Ala. R. Civ. P. "Direct
contempt" is defined as:
"disorderly or insolent behavior or other misconduct
committed in open court, in the presence of the judge, that
disturbs the court's business, where all of the essential
elements of the misconduct occur in the presence of the court
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and are actually observed by the court, and where immediate
action is essential to prevent diminution of the court's dignity
and authority before the public."
Rule 70A(a)(2)(A), Ala. R. Civ. P. In contrast, a "constructive contempt"
means "any criminal or civil contempt other than a direct contempt." Rule
70A(a)(2)(B).
Our courts have applied the concept of mitigation to constructive
contempt claims.
"In considering whether a lower court complied with the
requirements of due process in a case of constructive or
indirect contempt, we look to determine if the following
elements were present: (1) notice of the charges; (2)
reasonable opportunity to meet them; (3) right to call
witnesses; (4) right to confront the accuser; (5) right to give
testimony relevant either to the issue of complete exculpation
or extenuation of the offense; and (6) right to offer evidence in
mitigation of the penalty imposed."
Fludd v. Gibbs, 817 So. 2d 711, 713 (Ala. Civ. App. 2001). See also Charles
Mfg. Co. v. United Furniture Workers, 361 So. 2d 1033, 1037 (Ala. 1978);
Kimbrough v. Kimbrough, 963 So. 2d 662, 665 (Ala. Civ. App. 2007).
The mother briefly asserts on appeal that under Rule 70A, she was
entitled to due process and an evidentiary hearing. Out of an abundance
of caution, we interpret that statement as arguing that she was denied
due process with regard to the contempt claim. The mother has not
27
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identified any of the six elements listed above that she contends were not
provided to her in the juvenile court. In fact, our review of the record
indicates that the mother had notice of the contempt claim and an
opportunity at the final hearing to call witnesses, confront her accuser,
to provide her own testimony, and to present evidence of any applicable
mitigating circumstances. The mother's failure to appear at the
dependency hearing, at which the juvenile court considered the contempt
claims, did not operate to deprive the mother of her due-process rights.
Further, the mother was represented by an attorney at the dependency
hearing and was provided with the opportunity to present evidence in
opposition to the dependency claim.
In her appellate brief, the mother does not argue that her actions
in failing to enroll in color-code drug screening and in continuing to
contact the child did not violate the juvenile court's orders. Instead, the
mother contends that the juvenile court should have considered her
mental-health conditions as rendering her unable to comply with its
orders and the grant of her status as an indigent litigant as evidence of
her inability to pay the stepfather's attorney fee as a part of the contempt
sanction. The mother impermissibly raises those arguments for the first
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time on appeal. See Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala.
1992) ("[An appellate court] cannot consider arguments raised for the
first time on appeal; rather, [an appellate court's] review is restricted to
the evidence and arguments considered by the trial court.").
However, out of an abundance of caution, we note that the language
of the juvenile court's judgment fully supports the determination that it
was aware of the mother's mental-health conditions. The juvenile court's
judgment implies that it concluded that, even with the impact of her
mental-health condition, the mother was capable of understanding and
complying with court orders. The evidence that the mother is capable of
working and earning income as an aesthetician supports that
determination. With regard to her ability to pay the contempt sanction,
in her affidavit of substantial hardship filed in the juvenile court, the
mother represented that her total monthly income was $1,000 per
month. 4 In support of his child-support claim, the stepfather testified
that the mother received approximately $2,380 in earnings and disability
income, and that she receives another $185 per week from the stepfather.
4The figures the mother listed with regard to various types of
income totaled more than $1,000 per month, but the "total monthly gross
income" listed by the mother in applying for indigency status was $1,000.
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No evidence before the juvenile court indicated that the mother was
unable to comply with the juvenile court's orders. Accordingly, given the
evidence in the record and the discretion to be afforded the juvenile court,
we cannot say that the juvenile court erred in reaching its contempt
determination. See Poh v. Poh, 64 So. 3d 49, 61 (Ala. Civ. App. 2010)
("The issue whether to hold a party in contempt is solely within the
discretion of the trial court, and a trial court's contempt determination
will not be reversed on appeal absent a showing that the trial court acted
outside its discretion or that its judgment is not supported by the
evidence.").
As a final issue, the mother challenges the juvenile court's
determination of her child-support obligation. In Alabama, the
determination of a non-custodial parent's child-support obligation is
governed by the Rule 32, Ala. R. Jud. Admin., child-support guidelines.
Shook v. Shook, [Ms. 2210161, Apr. 28, 2023] ___ So. 3d ___, ___ (Ala.
Civ. App. 2023); Wells v. Tankersley, 244 So. 3d 975, 985 (Ala. Civ. App.
2017). In order to assist a juvenile court or other trial court in calculating
the appropriate amount of child support, the parties are required by the
child-support guidelines to submit certain forms in any action involving
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a claim for child support. Specifically, Rule 32(E), Ala. R. Jud. Admin.,
requires that each party file:
"A standardized Child-Support Guidelines form (Form CS-42
or Form CS-42-S as appended to this rule), a Child-Support-
Obligation Income Statement/Affidavit form (Form CS-41 as
appended to this rule), and a Child-Support Guidelines Notice
of Compliance form (Form CS-43 as appended to this rule)
shall be filed in each action to establish or modify child-
support obligations and shall be of record and shall be deemed
to be incorporated by reference in the court's child-support
order."
Compliance with Rule 32(E) is mandatory, and the failure to comply with
that rule can be a basis for reversing a child-support judgment. Martin v.
Martin, 637 So. 2d 901, 903 (Ala. Civ. App. 1994); J.M. v. D.V., 877 So.
2d 623, 630 (Ala. Civ. App. 2003). However, if this court can discern from
the evidence in the record the manner in which the juvenile court or trial
court calculated child-support determination, we may affirm the child-
support award. Hayes v. Hayes, 949 So. 2d 150, 154 (Ala. Civ. App. 2006);
Devine v. Devine, 812 So. 2d 1278, 1282-83 (Ala. Civ. App. 2001).
In this case, the stepfather submitted to the juvenile court a Form
CS-41 income affidavit for himself and a Form CS-42 child-support-
guidelines form in which he represented, among other things, that the
mother's gross monthly income was $3,265. The mother did not submit
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into evidence any of the forms required by Rule 32(E). At the final
hearing, the stepfather testified that the mother received $880 per month
in disability benefits, that she earned $1,500 per month in income, and
that he paid her $185 per week; it is not clear whether the weekly
payment to the mother is a form of alimony or a gift. See Rule 32(B)(2)(a),
Ala. R. Jud. Admin. ("Gross income" for the purposes of the child-support
guidelines includes, among other things, income from gifts or a
preexisting award of periodic alimony).
" ' "The trial court is not bound by the income figures advanced
by the parties, and it has discretion in determining a parent's
gross income. However, ' "[t]his court cannot affirm a child-
support order if it has to guess at what facts the trial court
found in order to enter the support order it entered...." ' Willis
v. Willis, 45 So. 3d 347, 349 (Ala. Civ. App. 2010) (quoting
Mosley v. Mosley, 747 So. 2d 894, 898 (Ala. Civ. App. 1999))."
Morgan v. Morgan, 183 So. 3d 945, 961 (Ala. Civ. App. 2014).' "
Wells v. Tankersley, 244 So. 3d at 986 (quoting Walker v. Lanier, 221 So.
3d 470, 473-74 (Ala. Civ. App. 2016)).
The amounts of the mother's income to which the stepfather
testified during the final hearing do not total the $3,265 of gross monthly
income set forth in the stepfather's Form CS-42, upon which the juvenile
court relied in reaching its child-support determination. We are unable
to determine from the record the manner in which the juvenile court
32
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could have reached its determination of the mother's gross monthly
income for the purposes of calculating her child-support obligation. For
that reason, we reverse the child-support award and remand the cause
for the juvenile court to redetermine child support in compliance with the
Rule 32 child-support guidelines. Johnson v. Johnson, 372 So. 3d 1217,
1222 (Ala. Civ. App. 2022); Cate v. Cate, 370 So. 3d 560, 566 (Ala. Civ.
App. 2022); Walker v. Lanier, 221 So. 3d at 473-74.
We affirm the juvenile court's judgment with regard to the issues of
custody, visitation, and contempt. We reverse that part of the juvenile
court's judgment concerning the award of child support, and we remand
the cause for the redetermination of the mother's child-support
obligation.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Edwards, Fridy, and Lewis, JJ., concur.
Moore, P.J., concurs in the result, without opinion.
33