K.S. v. G.A.B.

911 So. 2d 1085, 2005 Ala. Civ. App. LEXIS 227
Court of Civil Appeals of Alabama·Decided April 29, 2005·No. 2031140, 2040019, and 2040043·Published·Cited by 10 cases

Opinion

MURDOCK, Judge.

K.S. (“the mother”) appeals from an August 2004 order entered by the Walker Juvenile Court awarding custody of her son, W.S., to G.A.B. and his wife, W.G.B. (JU-01-490.03). G.A.B. is the cousin of the mother’s fiancé, Tr.D. Our case number for this appeal is 2031140.

The mother also appeals from a September 2004 order entered by the Walker Juvenile Court transferring custody of three of her other children to the Walker County Department of Human Resources (“DHR”). The three children are: A.S., a son and W.S.’s brother (JU-01-489.03); T.D., a daughter by Tr.D. (JU-03-248.02); and N.G.D., a son by Tr.D. (JU-04-386.01). Our case number for this appeal is 2040019.

Tr.D. also appeals from the September 2004 order as to T.D. and N.G.D. Our case number for Tr.D.’s appeal is 2040043. We have, ex mero motu, consolidated the appeals in case numbers 2031140, 2040019, and 2040043 based on their common procedural history.

A.S. was born in March 1995 and W.S. was born in July 1996. T.D. was born in January 2000; N.G.D. was born in May 2003. A.S. and W.S. are children of the mother and D.S., who was also a party to the underlying proceedings regarding W.S. and A.S.; D.S. has not appealed.1 The mother and D.S. divorced in 1999; they apparently were awarded joint custody of their children.

To prevent confusion and unnecessary repetition, the following recitation of procedural history reflects findings of fact that were made by the trial court and that are supported by the evidence presented to the trial court, or findings that are supported by the evidence and that would support the trial court’s judgment. See Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996) (holding that in the absence of specific findings of fact, an appellate court will assume that the trial court made those findings necessary to support its judgment, unless such findings would not be supported by the evidence).

From the time W.S. was 18 months old until approximately 2001, he was “passed off from person to person,” including D.S., the mother, his paternal grandparents, and Tr.D.’s mother, B.M. At some point in 2001, however, W.S. resided primarily with D.S. on weekdays and with G.A.B. and W.G.B. on weekends. Thereafter, the portion of each week during which W.S. resided with G.A.B. and W.G.B. increased without objection from the mother. By December 2002, G.A.B. and W.G.B. were caring for W.S. on a full-time basis, although W.S. continued to stay with D.S. on occasion.

On Christmas Day 2002, the mother requested that G.A.B. and W.G.B. allow W.S. to visit with her and her other children. W.G.B. honored the mother’s request and delivered W.S. to the mother’s residence at 10:00 a.m. on Christmas Day. A few hours later, however, the mother contacted W.G.B. and requested that she retrieve W.S. because the children were “driving her crazy.” Christmas Day 2002 was the last time the mother had actual physical custody of W.S.

In February 2003, police raided the mother and Tr.D.’s residence where they “found enough evidence to charge them with ‘Attempting to Manufacture [1088]*1088Meth[amphetamine].’ ”2 The incident was reported to Walker County DHR, which also had received reports in late 2002 and early 2003 that D.S. was engaged in illegal drug activity. In March 2003, DHR opened protective-services cases on K.Sa., A.S., W.S., and T.D. As noted above, neither K.Sa. nor W.S. was residing with the mother at the time. The mother was pregnant with N.G.D. when DHR opened the protective-services cases on the aforementioned children.

Pursuant to a safety plan instituted by DHR, A.S. was placed in the custody of his paternal grandmother, B.S., where K.Sa. already resided, see note 1, supra; W.S. remained in the custody of G.A.B. and W.G.B.; and T.D. was placed in the custody of her paternal grandmother, B.M. The mother and Tr.D. were allowed supervised visitation with A.S., W.S., and T.D. Also, pursuant to Ala.Code 1975, § 26-2A-7, the mother executed “Delegations of Parental Authority” in favor of the respective children’s custodians “granting [to the custodians] physical custody and authority to make any decision relating to the physical custody, health, education, or maintenance” of A.S., W.S., and T.D.

On April 6, 2003, T.D., along with her custodian, B.M., spent the night with the mother and Tr.D. At approximately 1:00 p.m. on April 7, 2003, while B.M. was in another room of the house, the mother and Tr.D. took T.D. and left the home. B.M. contacted the police and DHR. DHR located the mother and Tr.D. and requested that they return T.D., but the mother and Tr.D. were uncooperative. DHR filed petitions in the Walker Juvenile Court alleging that A.S. (JU-01-489.02), W.S. (JU-01-490.02), and T.D. (JU-03-248.01) were dependent children.3 The petitions alleged that the mother had attempted to abscond with T.D. in violation of a safety plan, and that all three of the children were at risk. DHR requested that the trial court award it “the temporary care, custody and control” of A.S., W.S., and T.D.

Upon the filing of the dependency petitions, the trial court immediately issued ex parte pick-up orders for A.S., W.S., and T.D. In those orders, the trial court also awarded DHR pendente lite custody of the children and set the cases for a 72-hour hearing to be held on April 8, 2003, at 2:00 p.m. The record reflects that D.S. was served with the petitions and summons on April 7, 2003, and that the mother and Tr.D. were served with the petitions and summons on April 8, 2003.

On the morning of April 8, 2003, at approximately 8:33 a.m., the trial court entered another ex parte order in which it awarded custody of W.S. to G.A.B. and W.G.B. based on a petition for custody that was verified and that also was accompanied by supporting affidavits. The petition and its supporting affidavits had yet to be filed with the clerk of the court, however.4 See discussion, infra; see also Rule 5(e), Ala. R. Civ. P. (allowing a trial judge to accept papers for filing, “in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk”).

[1089]*1089Later in the day on April 8, 2003, the trial court conducted the scheduled 72-hour hearing. The hearing transcript reflects that it was held in camera and that the following attorneys were present: the mother’s attorney, Tr.D.’s attorney, the children’s guardian ad litem, an attorney for DHR, and G.A.B. and W.G.B.’s attorney, who is listed on the transcript as the attorney for the intervenors. According to a later order that was entered by the trial court on May 6, 2003, the April 2003 hearing was also attended by G.A.B. and W.G.B., three DHR social workers (one of whom made a comment that is reflected in the hearing transcript), Tr.D., D.S., D.S.’s attorney, B.M., and B.S. The trial court also made a later finding that the mother had attended the hearing.

The hearing transcript consists of a brief colloquy between DHR’s attorney and the trial court regarding what DHR intended to do in the children’s cases, particularly the cases concerning A.S. and T.D. The hearing transcript reflects that DHR had been in contact with G.A.B. and W.G.B.’s attorney and that DHR did not intend to disturb the custodial arrangement ordered by the trial court as to W.S. The transcript also reflects that DHR intended to leave A.S. and T.D. in the physical care of B.S.

Free access — add to your briefcase to read the full text and ask questions with AI

K.S. v. G.A.B., 911 So. 2d 1085, 2005 Ala. Civ. App. LEXIS 227 (Ala. Ct. App. 2005).

911 So. 2d 1085 (K.S. v. G.A.B.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

H.W.R. v. J.C.
165 So. 3d 623 (Court of Civil Appeals of Alabama, 2014)
L.A.C. v. T.S.C.
8 So. 3d 322 (Court of Civil Appeals of Alabama, 2008)
Ex Parte As
3 So. 3d 842 (Supreme Court of Alabama, 2008)
Mb v. Rp
3 So. 3d 237 (Court of Civil Appeals of Alabama, 2008)
L.S. v. A.S.
3 So. 3d 842 (Supreme Court of Alabama, 2008)
S.A.T. v. E.D.
972 So. 2d 804 (Court of Civil Appeals of Alabama, 2007)
Ks v. Gab
911 So. 2d 1085 (Court of Civil Appeals of Alabama, 2005)