C.D. v. A.C. (2024)

C.D. (“the adoptive mother”) appeals from a judgment entered by the Tuscaloosa Juvenile Court (“the juvenile court”) finding M.C. (“the child”), whose date of birth is September 11, 2010, dependent and awarding custody of the child to A.C. (“the paternal grandmother”). Because we find that the child was not dependent at the time of the judgment, we reverse the juvenile court's judgment and remand this cause with instructions.

Procedural History

On August 12, 2019, the paternal grandmother filed in the juvenile court a petition seeking to have the child declared dependent and an award of custody of the child. In an addendum to her petition, the paternal grandmother alleged that she received a call from Child Protective Services (“CPS”) in Orange, Texas, asking her to pick up the child because the adoptive mother had been arrested for child abandonment, child neglect, and money laundering, while traveling with the child. On September 5, 2019, the adoptive mother filed a motion to dismiss the dependency petition for lack of jurisdiction because the child was not a resident of the State of Alabama.

On September 24, 2019, the juvenile court entered an order in which it determined that it had temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), § 30-3B-101 et seq., Ala. Code 1975, to proceed and granted the care, custody, and control of the child to the paternal grandmother pending further orders of the court. In its order exercising temporary emergency jurisdiction, the juvenile court awarded the adoptive mother no less than four hours of supervised visitation with the child each month.

On March 3, 2020, the juvenile court entered an “order after jurisdictional hearing,” in which it stated that counsel for the parties stipulated to the following facts:

“1. The [c]hild's date of birth is September 11, 2010. She was born in Florida.

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“3. While the [c]hild was very young, there was a dependency proceeding in Florida. As a result, [the adoptive mother] received custody. [The adoptive mother] is the biological maternal grandmother of the child.

“4. [The adoptive mother] later adopted the [c]hild, receiving a Final Judgment of Adoption from the Circuit Court of Manatee County, Florida ․ on September 18, 2016.

“5. The [c]hild and [the adoptive mother] continued to live in Florida until the end of the 2018-2019 school year, at which time they moved to Georgia.

“6. On or about August 7, 2019, [the adoptive mother] was driving a vehicle from Georgia to Texas, accompanied by the [c]hild. The vehicle was stopped by law enforcement[,] and [the adoptive mother] was arrested. Child protective services in Texas contacted [the paternal grandmother], ․ at the suggestion of [the adoptive mother]. At the behest of a Texas child protective services representative, [the paternal grandmother] immediately drove to Texas to take physical custody of the [c]hild, so that she would not be placed in the Texas foster care system. The petition in the instant case was initiated soon thereafter.

“7. Alabama, Florida, Georgia and Texas all have adopted the Uniform Child Custody Jurisdiction and Enforcement Act [(“the UCCJEA”), which is codified in Alabama at § 30-3B-101 et seq., Ala. Code 1975]. All four states utilize the same definition of 'Home State' - the state in which the child lived for at least six (6) consecutive months immediately before the initiation of the custody action.

“8. Under the terms of the UCCJEA, the Child has no 'Home State.'

“9. The instant proceeding remains the only pending custody litigation in any state.

“Pursuant to § 30-3B-201(a)(2), Ala. Code 1975, it is therefore ORDERED that this Court has jurisdiction to adjudicate and dispose of the pending dependency case.”

(Italics and capitalization in original.)

On October 5, 2020, the adoptive mother filed a motion to hold the paternal grandmother in contempt because, she said, the paternal grandmother denied her arranged visitation with the child. On October 21, 2020, the adoptive mother filed a motion for an emergency hearing to return custody of the child to her. Specifically, the adoptive mother alleged that, during the most recent visitation between her and the child, she learned that the child had been continuously enduring corporal punishment at the hands of an uncle and the paternal grandmother. On October 27, 2020, the juvenile court ordered that the Tuscaloosa County Department of Human Resources (“DHR”) assess the allegations for safety and provide any necessary services. In a motion filed by DHR on May 23, 2021, DHR asserted that “[t]here are no current safety issues identified by DHR with the child's current placement[,] and no actual services outside of DHR home visits are being provided or assessed as needed in the case at this time.”

On May 16, 2022, the adoptive mother filed a motion for an instanter drug screen alleging that she “has reason to believe that there is a use of illegal substances in the presence of the minor child while in the home of the [paternal grandmother].” On that same day, the adoptive mother filed a motion to return custody of the minor child, again alleging that the child had “continuously endured excessive corporal punishment at the hands of an uncle and the [paternal grandmother], to the degree that same has left severe bruising and clearly rises to the level of physical abuse.” On May 16, 2022, the juvenile court entered an order directing both the paternal grandmother and the adoptive mother to submit to a 12-panel drug screen within 48 hours.

After numerous continuances, a trial was conducted by a referee for the juvenile court on January 26, 2024. On March 14, 2024, the referee entered what it titled “Findings/Recommendations/Order.” The referee specifically found:

“WHEREFORE, the Court from clear and convincing evidence and having considered all relevant and material evidence presented, FINDS the ․ child to be DEPENDENT and IN NEED OF CARE AND SUPERVISION pursuant to Section 12-15-102(8), Code of Alabama 1975. The child has been with [the paternal grandmother] in Tuscaloosa County, Alabama[,] since around August[ ] 2019 due to the [adoptive mother's] arrest in Texas for Child Endangerment. The child was in a rented vehicle with an undisclosed amount of cash. [The adoptive mother] testified [that] the charges were ultimately dropped and she did not know the cash was in the car. [The adoptive mother] claimed to be visiting a friend in Texas and had taken [the child] with her on a few other occasions. [The adoptive mother] admitted to living in Florida, Atlanta, Alabama and North Carolina during the pendency of this case. The court attempted to get an out of state home study on the mother but was not able to complete due to [the adoptive] mother's instability. The [adoptive] mother offered into evidence a private home study on her current residence located [in] ․ Franklin, North Carolina[,] that she shares with [G.H.] The home study was favorable[,] but the criminal background and sex offender checks were done for North Carolina only. [The adoptive mother] and [G.H.] have only lived in North Carolina since February 2023.

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“Custody of the ․ child shall be vested in [the paternal grandmother].

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“Placement of the ․ child with her parent would be contrary to the said child's welfare and interests for the following reasons: Allegations in the petition, testimony at trial and the recommendation of the Guardian Ad Litem.

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“Reasonable efforts to prevent removal of the child were not possible/have been unsuccessful due to the emergency circumstances described in the Dependent Petition.

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“[The adoptive] [m]other shall have visitation with the child ․ [u]nsupervised at least one weekend per month in Tuscaloosa, Alabama[,] during the months school is in session from Friday at 6:00 [PM] until Sunday at 6:00 PM and any other times agreed upon by the parties. [The adoptive] [m]other shall give the [paternal grandmother] 72-hour notice of her intent to visit the child in Tuscaloosa. [The adoptive] [m]other shall ensure the child is able to participate in her extracurricular activities during visitation.

“[The adoptive] [m]other shall have one week summer visitation in June and one week in July that may occur at the [adoptive] [m]other's home in North Carolina. [The adoptive] [m]other shall give notice to the [paternal grandmother] of the weeks she intends to exercise her visitation in writing no later than May 1 of each year. The weeks shall not be consecutive unless agreed upon by the parties. The [adoptive] mother shall have the child in odd-numbered years for Thanksgiving beginning the day school is recessed for Thanksgiving break until the Sunday following Thanksgiving at 6:00 PM. The [adoptive] mother is responsible for transporting the child for all visitations. Beginning in 2025, the [adoptive] mother shall also have the child for Spring Break from the day school is recessed for Spring Break until the following Wednesday at 6:00 PM.

“․.

“No party shall allow a third party to use corporal punishment on the child. The child shall be made available for telephone contact with the [adoptive] mother and the [paternal grandmother] at reasonable times. The [adoptive] mother and [paternal grandmother] shall notify the other when the child is taken out of state and shall notify the other of the address where the child will be staying.

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“All other matters before the Court not specifically included herein are hereby DENIED.”

(Capitalization in original). On that same day, the findings and recommendations of the referee were ratified by the juvenile court. On March 27, 2024, the adoptive mother filed her notice of appeal to this court.

Evidence

At the time of trial, the child, who was 13 years old, was living in Tuscaloosa with the paternal grandmother and the paternal grandmother's sister. The paternal grandmother testified that the child has been doing well in school, receiving As, Bs, and one C. The child has participated in extracurricular activities, including afterschool tutoring and step team. The paternal grandmother testified that she was able to financially provide for the child and that the child had her own room at the paternal grandmother's home. Further, the paternal grandmother testified that the child had friends and social connections in the community.

According to the paternal grandmother, the child has supervised visits with the adoptive mother once a month between three and four hours in public places such as a skating rink and the mall. The adoptive mother testified that, when she goes for visitation with the child, there are always other children present with the child. According to the adoptive mother, she buys cookies at the mall or dinner for at least one other child each time she has visitation. The paternal grandmother testified that the visits between the child and the adoptive mother “go okay.” The adoptive mother and the child also have telephone visits when the in-person visitation does not last the full four hours as awarded by the juvenile court.

The paternal grandmother testified that she has, on occasion, declined the adoptive mother visitation with the child when the adoptive mother has not given her ample time to set up visitation. The paternal grandmother testified that the adoptive mother sometimes called three days ahead of the date of the requested visit and that she needed more time to set up visitation. According to the adoptive mother, the paternal grandmother has given her makeup visitation in those instances. When the paternal grandmother offered makeup visitation, the adoptive mother stated: “I've just agreed with what she was offering me. Any chance I get to see [the child], I want it.”

When questioned about whether she asked for additional visitation time, the adoptive mother testified that she had not asked because she had a hard time just getting the four hours of visitation some months. Additionally, the adoptive mother testified that she had not asked to be able to go to any of the child's school activities because “[i]f they're not going to give me an[y] additional time or talk on the phone, [the paternal grandmother's] surely not going to let me go to any of her functions.”

The paternal grandmother testified that the adoptive mother had not asked about the child's school, health, or any issues that the child may be having. According to the paternal grandmother, the adoptive mother did not provide financially for the child but bought the child clothes and shoes for the child's birthdays and Christmas. However, the adoptive mother testified that she gave the child $20 every time she visited with the child and that the paternal grandmother received almost $700 per month for the child from the adoptive mother's Social Security check. Further, the adoptive mother testified that she bought the child a tablet, hoverboards, clothes, school supplies, hair supplies, shoes, and purses. The adoptive mother testified that the child “usually tells me what she needs[,] and I go and buy it.”

The adoptive mother testified that, after her arrest in Texas, she returned to Georgia for approximately two months before moving back to Florida. While in Florida, the adoptive mother met G.H. and lived with him at his home for three years. According to the adoptive mother, she and G.H. are planning to get married and are currently living in Franklin, North Carolina, where they have resided for over one year. The adoptive mother testified that G.H. met the child when he came with her to one of the visitations.

The adoptive mother testified that she receives Social Security disability benefits in the amount of $1,498 per month. Additionally, she testified that she works part-time at a Lowe's store and earns approximately $1,200 per month. Further, the adoptive mother testified that G.H. earns approximately $65,000 per year. According to the adoptive mother, she and G.H. have sufficient income to finance their household needs.

The adoptive mother testified that she paid for a home study to be conducted on her home in North Carolina. The adoptive mother's home study was admitted into evidence. According to the adoptive mother's home study, the home in North Carolina is “well maintained, warm and welcoming.” Additionally, the findings of the home study were that there are no safety concerns with the adoptive mother's current home. In summary, the home study states that “[the adoptive mother] is an educated, professional woman who lives a stable life. ․ [The adoptive mother] is financially, morally suitable, and is in satisfactory physical and mental health.” Further, “[t]here are many resources available for the family, including excellent medical care, educational opportunities, recreational and family activities in the local community and beyond. Also readily available are excellent counseling and supportive services for the entire family.”

The adoptive mother testified that, if she is awarded custody of the child, the child would have her own room, which is already ready for her. Further, the adoptive mother testified that Franklin Middle School, the school that the child would attend, is located approximately two miles from her home. According to the adoptive mother, in the community, there are activities, such as whitewater rafting and hiking, available to the child. Ultimately, the adoptive mother testified that she is able and willing to take care of the child and that she wishes to have custody of the child returned to her.

Standard of Review

“'As a matter of constitutional law, a parent who has exercised custody over a child has a prima facie right to the continued custody of the child. See In re Moore, 470 So. 2d 1269, 1270 (Ala. Civ. App. 1985). The presumptive right of parents to the custody of their child may be overcome by clear and convincing evidence demonstrating that the parents are currently unable to discharge their responsibilities to and for the child and that the child requires additional care and supervision through the state, i.e., that the child is “dependent.” See Ala. Code 1975, § 12-15-102(8)a.6.; see also V.W. v. G.W., 990 So. 2d 414, 417 (Ala. Civ. App. 2008) (quoting K.B. v. Cleburne County Dep't of Human Res., 897 So. 2d 379, 389 (Ala. Civ. App. 2004) (Murdock, J., concurring in the result)) (“'[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.'”). “Clear and convincing evidence” is defined as

“'“'[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. 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.'”

“'L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002) (quoting Ala. Code 1975, § 6-11-20[(b)](4)).'”

N.G. v. Blount Cnty. Dep't of Hum. Res., 216 So. 3d 1227, 1233 (Ala. Civ. App. 2016) (quoting R.F.W. v. Cleburne Cnty. Dep't of Hum. Res., 70 So. 3d 1270, 1272 (Ala. Civ. App. 2011)).

Discussion

On appeal, the adoptive mother argues that the trial court did not have sufficient evidence upon which it could find that the child was dependent at the time of the trial. Section 12-15-102(8), Ala. Code 1975, defines a dependent child as

“a. 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:

“1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in Section 12-15-301[, Ala. Code 1975,] or neglect as defined in Section 12-15-301, or allows the child to be so subjected.

“2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.

“3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.

“4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state.

“5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 12-15-301.

“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.

“7. Who has been placed for care or adoption in violation of the law.

“8. Who, for any other cause, is in need of the care and protection of the state.”

This court has explained:

“'[T]he test [for determining whether a petitioner has established a child's dependency] is whether [the petitioner] has presented clear and convincing evidence demonstrating that the parental conduct or condition currently persists to such a degree as to continue to prevent the parent from properly caring for the child.' M.G. v. Etowah Cty. Dep't of Human Res., 26 So. 3d 436, 442 (Ala. Civ. App. 2009) (plurality opinion). The juvenile court may consider the totality of the circumstances when making a finding in a dependency proceeding. G.C. v. G.D., 712 So. 2d 1091, 1094 (Ala. Civ. App. 1997). See also D.P. v. State Dep't of Human Res., 571 So. 2d 1140 (Ala. Civ. App. 1990).”

H.A.S. v. S.F., 298 So. 3d 1092, 1097-98 (Ala. Civ. App. 2019).

In the present case, the paternal grandmother alleged in her petition that the child is dependent and in need of care, rehabilitation, or supervision pursuant to § 12-15-102(8)a.6., Ala. Code 1975. In H.C. v. S.L., this court explained that

“'“[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.”' V.W. v. G.W., 990 So. 2d 414, 417 (Ala. Civ. App. 2008) (quoting K.B. v. Cleburne Cty. Dep't of Human Res., 897 So. 2d 379, 389 (Ala. Civ. App. 2004) (Murdock, J., concurring in the result)). See also D.D.P. v. D.M.B., 173 So. 3d 1, 3 (Ala. Civ. App. 2015) (same). If the child is not dependent at the time of the dispositional judgment, the juvenile court lacks jurisdiction to make a custody determination. M.D. v. S.C., 150 So. 3d 210, 212 (Ala. Civ. App. 2014); L.R.J. v. C.F., 75 So. 3d 685, 687 (Ala. Civ. App. 2011); see also C.C. v. B.L., 142 So. 3d 1126, 1129 (Ala. Civ. App. 2013) ('In light of the juvenile court's finding that the child was not dependent, the juvenile court lacked jurisdiction to enter a judgment affecting the custody of the child, including visitation.').”

251 So. 3d 793, 794 (Ala. Civ. App. 2017).

At the trial, there was evidence presented that the child was placed in the custody of the paternal grandmother in August 2019 as a result of the adoptive mother's arrest in Texas. However, as the adoptive mother testified, she received an authenticated letter stating that the charges against her in Texas had ultimately been dropped. Further, there is no indication in the record that the adoptive mother has had any legal issues since the arrest in 2019.

After her arrest in Texas in 2019, the adoptive mother moved back to Florida, where she met G.H., whom she plans to marry. The adoptive mother and G.H. lived together in Florida for three years and have currently lived in North Carolina for over one year. The adoptive mother travels to Alabama monthly to visit with the child for four hours. The paternal grandmother testified that the adoptive mother has not provided financially for the child, but she admitted that the adoptive mother has bought the child clothes and shoes for the child's birthdays and Christmas. The adoptive mother testified that she gives the child $20 every time she visits with the child and that the paternal grandmother receives almost $700 per month for the child in dependent Social Security benefits. Further, the adoptive mother testified that she purchased the child a tablet, hoverboards, clothes, school supplies, hair supplies, shoes, and purses.

The adoptive mother testified that she receives Social Security benefits in the amount of $1,498 per month, as well as approximately $1,200 per month working part-time at a Lowe's store. Further, the adoptive mother indicated that G.H. makes approximately $65,000 per year. Accordingly, evidence in the record indicates that the adoptive mother's household makes enough money to finance their needs and would be able to provide for the child.

Additionally, the mother paid to have a private home study conducted in North Carolina. According to that home study, the adoptive mother's home in North Carolina is “well maintained, warm and welcoming.” Further, the home study indicated that “[the adoptive mother] is an educated, professional woman who lives a stable life. ․ [The adoptive mother] is financially, morally suitable, and is in satisfactory physical and mental health.”

Upon consideration of the totality of evidence in the record on appeal, we cannot conclude that the record contains clear and convincing evidence from which the juvenile court could have found that the child was dependent at the time of judgment. The circumstances that led to the child being removed from the custody of the adoptive mother -- her being placed under arrest -- no longer existed at the time of the trial. The charges against the adoptive mother were dropped, and there was insufficient evidence that any other circumstances existed that would prevent the adoptive mother from discharging her responsibilities to and for the child or that the adoptive mother was unwilling to discharge her responsibilities to and for the child. See § 12-15-102(8)a.6. Because there was insufficient evidence that the child was dependent at the time of the judgment, the juvenile court erred in finding the child dependent, and it lacked jurisdiction to enter a judgment affecting the custody of the child. See H.C. v. S.L., 251 So. 3d 793, 794 (Ala. Civ. App. 2017).

Conclusion

Based on the foregoing, the juvenile court's judgment finding the child dependent and awarding custody of the child to the paternal grandmother is reversed. The cause is remanded with instructions for the juvenile court to enter a judgment dismissing the dependency case and reinvesting the adoptive mother with custody of the child.

REVERSED AND REMANDED WITH INSTRUCTIONS.

LEWIS, Judge.

Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.