P.D. v. S.S.

67 So. 3d 128, 2011 Ala. Civ. App. LEXIS 17, 2011 WL 190050
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 21, 2011
Docket2090301
StatusPublished
Cited by11 cases

This text of 67 So. 3d 128 (P.D. v. S.S.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
P.D. v. S.S., 67 So. 3d 128, 2011 Ala. Civ. App. LEXIS 17, 2011 WL 190050 (Ala. Ct. App. 2011).

Opinion

PITTMAN, Judge.

P.D. (“the mother”) appeals from a judgment of the Montgomery Juvenile Court awarding custody of her children (collectively, “the children”), born of the marriage to her former husband (“the father”), to S.S., the father’s sister (“the aunt”).

In March 2009, about a month after the death of the father, the aunt petitioned to have the children declared dependent and sought custody of the children. Additionally, the aunt filed an ex parte motion seeking temporary custody of the children (“the ex parte motion”). The juvenile [130]*130court granted the ex parte motion pending a hearing on the dependency and custody petitions, which was thereafter held in October 2009.

In a judgment, dated October 23, 2009, the juvenile court found that the children were dependent, awarded custody of the children to the aunt, and granted visitation rights to the mother, the terms of which were to be decided and agreed upon by the parties. That order also provided that the mother’s visits were to be supervised by the aunt or by another person approved by the aunt. In response, the mother timely filed a postjudgment motion to alter, amend, or vacate that judgment on November 6, 2009, to which the aunt and the children’s guardian ad litem responded in opposition. The mother then filed, pursuant to Rule 59.1, Ala. R. Civ. P., a notice of the parties’ express agreement to extend until December 1, 2009, the time for a ruling on the postjudgment motion.1 The juvenile court heard arguments on the mother’s postjudgment motion on December 1, 2009, but it did not expressly rule on that motion by the end of that day. On December 8, 2009, the juvenile court purported to amend its previous judgment to provide that the mother should have supervised visitation with the children, at a minimum, from Saturday at 12 p.m. until Sunday at 5 p.m. during the third weekend of each month and that the mother’s visitation could be increased or changed upon agreement of the parties. The mother thereafter timely appealed, and the juvenile court judge certified the record as adequate for appellate review. See Rule 28(A), Ala. R. Juv. P.

The mother raises three issues on appeal. First, the mother contends that the juvenile court erred in awarding custody of the children to the aunt. Second, the mother asks this court to address whether her postjudgment motion was denied by operation of law so as to render void the juvenile court’s order purporting to amend the judgment. Third, the mother argues that the juvenile court erred in requiring that her visitation be supervised by, and in requiring visitation to occur at the discretion of, the aunt.

We begin by addressing the mother’s first argument that the juvenile court erred in awarding custody of the children to the aunt. In support of that argument, the mother asserts that the juvenile court erred for three reasons: 1) the mother’s parental rights were, she says, incorrectly “terminated” without the juvenile court’s having first found her to be an unfit parent; 2) the award of custody to a nonpar-ent was improper because the juvenile court had not first found the mother to be an unfit parent; and 3) assuming that the award of custody to the aunt was based on a determination that the children were dependent, that determination would necessarily be incorrect because, the mother says, the aunt did not prove dependency.

The mother initially asserts that the juvenile court terminated her parental rights without first finding that she was an unfit parent. However, that assertion is based on the mother’s apparent misunderstanding of the juvenile court’s decision.2 The [131]*131juvenile court did not terminate the mother’s parental rights; instead, it concluded that the children were dependent. The trial transcript reveals that the juvenile court judge, during the hearing on the mother’s postjudgment motion, expressly indicated that the mother’s parental rights had not been terminated, stating that the judge disagreed with the notion that, “if children are placed with third parties, there [must] necessarily be a finding of unfitness against the natural parent” because, in the juvenile court’s view, such a finding of unfitness “removes from a natural parent any viable possibility to make changes in ... circumstances to be reunited with the child.” In fact, the mother, in her brief to this court, cites that statement in support of her contention that the juvenile court did not find the mother to be unfit. However, the mother’s reference to that statement demonstrates her apparent misapprehension of the juvenile court’s determination that the children were dependent, a determination that entails a much less severe outcome for the mother than would a termination of her parental rights.3 Thus, the mother’s argument that the juvenile court failed to satisfy a prerequisite of finding unfitness before terminating her parental rights (which did not occur) is factually unsound.

The mother next contends that, because the juvenile court did not find the mother unfit, custody should not have been awarded to the aunt, a nonparent, based on Ex parte Terry, 494 So.2d 628, 632 (Ala.1986), which case governs custody disputes between parents and nonparents.4 In Terry, the court stated:

“‘The prima facie right of a natural parent to the custody of his or her child, as against the right of custody in a nonparent, is grounded in the common law concept that the primary parental right of custody is in the best interest and welfare of the child as a matter of law. So strong is this presumption, absent a showing of voluntary forfeiture of that right, that it can be overcome only by a finding, supported by competent evidence, that the parent seeking custody is guilty of such misconduct or neglect to a degree which renders that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question. Hanlon v. Mooney, 407 So.2d 559 (Ala.1981).’ ”

494 So.2d at 632 (quoting Ex parte Mathews, 428 So.2d 58, 59 (Ala.1983)). Terry applies in child-custody disputes between a parent and nonparent; it does not apply if the child or children, the custody of whom is disputed, have been found to be depen[132]*132dent, as is the case here. See W.T.H. v. M.M.M., 915 So.2d 64, 70 (Ala.Civ.App.2005) (discussing the abundance of caselaw regarding the distinction between child-custody disputes and the dispositional phase of a dependency proceeding). Therefore, because the juvenile court found the children to be dependent, no finding of unfitness was necessary. See Anonymous v. Anonymous, 504 So.2d 289, 291 (Ala.Civ.App.1986) (stating that a determination that a parent is unfit is unnecessary to award custody to a nonparent after a finding that a child is dependent).

The third ground upon which the mother contends that the juvenile court erred in awarding custody to the aunt is that the juvenile court could not have properly determined that the children were dependent because, the mother says, the aunt did not prove dependency. Under Ala.Code 1975, § 12-15-311(a), a juvenile court’s determination that a child is dependent is to be based on clear and convincing evidence. The mother argues that the juvenile court’s decision was not so supported.

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

Related

A.E. v. Madison County Department of Human Resources
Court of Civil Appeals of Alabama, 2023
M.M. v. K.H.
257 So. 3d 292 (Court of Civil Appeals of Alabama, 2017)
K.P. v. Madison Cnty. Dep't of Human Res.
243 So. 3d 835 (Court of Civil Appeals of Alabama, 2017)
M.C. v. Jefferson County Department of Human Resources
198 So. 3d 518 (Court of Civil Appeals of Alabama, 2015)
C.M.R. v. L.W.
144 So. 3d 370 (Court of Civil Appeals of Alabama, 2014)
P.S. v. M.S.
101 So. 3d 228 (Court of Civil Appeals of Alabama, 2012)
K.D. v. Jefferson County Department of Human Resources
88 So. 3d 893 (Court of Civil Appeals of Alabama, 2012)
Casey v. Casey
85 So. 3d 435 (Court of Civil Appeals of Alabama, 2011)
R.B.O. v. Jefferson County Department of Human Resources
70 So. 3d 1286 (Court of Civil Appeals of Alabama, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
67 So. 3d 128, 2011 Ala. Civ. App. LEXIS 17, 2011 WL 190050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pd-v-ss-alacivapp-2011.