Blt v. Vt

12 So. 3d 123, 2008 Ala. Civ. App. LEXIS 835, 2008 WL 5424027
Procedural entryThis page is a short order in Blt v. Vt. Read the opinion of the Court — 12 So. 3d 123
Court of Civil Appeals of Alabama·Decided December 31, 2008·No. 2070918·Published

Opinion

12 So.3d 123 (2008)

B.L.T.
v.
V.T. and D.T.

2070918.

Court of Civil Appeals of Alabama.

December 31, 2008.

Joshua J. Lane, Anniston, for appellant.

Valerie L. Goudie, Anniston, for appellees.

*124 THOMAS, Judge.

In November 2006, the Calhoun Juvenile Court determined that D.C.T. (hereinafter sometimes referred to as "the child" or "the older child") was dependent and awarded her custody to the Calhoun County Department of Human Resources ("DHR"). The child was placed with V.T. and D.T. ("the paternal grandparents") while DHR worked to reunify B.L.T. ("the mother") with the child. On March 1, 2007, the paternal grandparents moved to intervene in the dependency proceeding and sought custody of the child. The juvenile court granted the petition to intervene, directed DHR to conduct a home study and a background check on the paternal grandparents, and set the matter for a hearing. Following the hearing on February 8, 2008, the juvenile court, on February 11, 2008, transferred custody of the child to the paternal grandparents, reserved the issue of visitation between the mother and the child, and directed the parties to submit a visitation plan to the court by May 8, 2008. On February 21, 2008, the mother appealed to this court from the juvenile court's February 11, 2008, order. This court determined that the mother's appeal was not from a final judgment because the visitation issue remained pending before the juvenile court; therefore, we dismissed the mother's appeal on March 25, 2008.

On April 10, 2008, the mother moved the juvenile court to establish her rights to visitation with the child. On June 5, 2008, the juvenile court entered a judgment setting out a schedule of visitation between the mother and the child. On June 10, 2008, the paternal grandparents filed a postjudgment motion, seeking to have the juvenile court vacate its June 5, 2008, judgment. On June 16, 2008, the juvenile court set the paternal grandparents' postjudgment motion for a hearing on June 18, 2008. On July 7, 2008, the mother filed a notice of appeal indicating that she was appealing from a final judgment of June 5, 2008, transferring custody of the child to the paternal grandparents. On July 8, 2008, the juvenile court purported to amend its June 5, 2008, judgment in response to the paternal grandparents' postjudgment motion.

Pursuant to Rule 1(B), Ala. R. Juv. P., "[a] postjudgment motion is deemed denied if not ruled on [by the juvenile court] within 14 days of filing." The paternal grandparents' June 10, 2008, postjudgment motion was denied by operation of law on June 24, 2008, 14 days after it was filed, because the juvenile court had not expressly ruled on it; therefore, the juvenile court's July 8, 2008, order purporting to amend its June 5, 2008, judgment was a nullity. The mother's July 7, 2008, notice of appeal, which was filed within 14 days of the denial by operation of law of the paternal grandparents' postjudgment motion, was timely.

Standard of Review

Section 12-15-71, Ala.Code 1975, provides, in pertinent part:

"(a) If a child is found to be dependent, the court may make any of the following orders of disposition to protect the welfare of the child:
"(1) Permit the child to remain with the parents, guardian, or other custodian of the child, subject to conditions and limitations as the court may prescribe.
"(2) Place the child under protective supervision as herein provided or under the supervision of the Department of Human Resources.
"(3) Transfer legal custody to any of the following:
*125 "a. The Department of Human Resources; provided, that the department is equipped to care for the child.
"b. A local public child-placing agency or private organization or facility willing and able to assume the education, care, and maintenance of the child and which is licensed by the Department of Human Resources or otherwise authorized by law to receive and provide care for the child.
"c. A relative or other individual who, after study by the Department of Human Resources, is found by the court to be qualified to receive and care for the child.
"(4) Make any other order as the court in its discretion shall deem to be for the welfare and best interests of the child."

(Emphasis added.) The legal standard to be applied in the dispositional phase of a dependency proceeding is the best-interest standard. S.P. v. E.T., 957 So.2d 1127 (Ala.Civ.App.2005).

"In Ex parte Alabama Department of Human Resources, 682 So.2d 459 (Ala. 1996), the Alabama Supreme Court stated the applicable principles of appellate review in the context of a challenge to a juvenile court's custodial disposition of a dependent child:
"`Appellate review is limited in cases where the evidence is presented to the trial court ore tenus. In a child custody case, an appellate court presumes the trial court's findings to be correct and will not reverse without proof of a clear abuse of discretion or plain error. Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991); J.S. v. D.S., 586 So.2d 944 (Ala.Civ.App.1991). This presumption is especially applicable where the evidence is conflicting. Ex Parte P.G.B., 600 So.2d 259, 261 (Ala. 1992). An appellate court will not reverse the trial court's judgment based on the trial court's findings of fact unless the findings are so poorly supported by the evidence as to be plainly and palpably wrong. See Ex Parte Walters, 580 So.2d 1352 (Ala. 1991).'
"682 So.2d at 460."

J.J. v. J.H.W., [Ms. 2061197, October 10, 2008] ___ So.3d ___, ___ (Ala.Civ.App. 2008).

The record reveals that the mother gave birth to the child, a daughter, in 2005. The mother and her husband, the child's father, separated when the child was approximately six weeks old. Initially, the child's father had custody of the child; the father and the child lived in the paternal grandparents' home. The paternal grandmother was the child's primary caretaker while her son, the child's father, worked the third shift at night and slept during the day. The mother had visitation for two hours each week with the child. The record indicates that, shortly after the parents separated, a representative of DHR came to the paternal grandparents' home and performed a drug test on the father and both paternal grandparents. The paternal grandfather tested positive for marijuana. The child's father also tested positive on the drug test, but the record does not indicate for what substance the father's drug test was positive. Apparently the child's father moved out of the paternal grandparents' home soon after the drug tests were performed. The record contains no further mention of the father, and he did not appear at the dependency hearing.

DHR began offering the paternal grandfather drug counseling and drug-testing services in an effort to maintain the child's placement with the paternal grandparents. DHR also began providing the mother with services in March 2006 after the paternal *126 grandparents notified DHR that they were concerned about the mother's ability to parent the child.

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Blt v. Vt, 12 So. 3d 123, 2008 Ala. Civ. App. LEXIS 835, 2008 WL 5424027 (Ala. Ct. App. 2008).

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Related

Ex Parte Alabama Dept. of Human Resources
682 So. 2d 459 (Supreme Court of Alabama, 1996)
Ex Parte Bryowsky
676 So. 2d 1322 (Supreme Court of Alabama, 1996)
Ex Parte Walters
580 So. 2d 1352 (Supreme Court of Alabama, 1991)
Reuter v. Neese
586 So. 2d 232 (Court of Civil Appeals of Alabama, 1991)
B.L.T. v. V.T.
12 So. 3d 123 (Court of Civil Appeals of Alabama, 2008)
Ex Parte P.G.B.
600 So. 2d 259 (Supreme Court of Alabama, 1992)