E.D. v. Lee Cnty. Dep't of Human Res.

266 So.3d 740

E.D., Jr.

v.LEE COUNTY DEPARTMENT OF HUMAN RESOURCES

2170190

Court of Civil Appeals of Alabama.

June 15, 2018

Stephanie M. Pollard of Beverlye Brady & Associates, Auburn, for appellant.

Steve Marshall, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.

THOMAS, Judge.

E.D., Jr. ("the father"), and J.M. ("the mother") are the parents of a son, S.G.D. ("the child"). The Lee County Department of Human Resources ("DHR") commenced in the Lee Juvenile Court ("the juvenile court") a dependency proceeding that was assigned case no. JU–17–373.01 ("the dependency action"). The father appeals the judgment entered in the dependency action determining that the child is dependent as to the father and awarding the child's custody to the mother.

The record on appeal reveals the following. The mother and the father are the unmarried parents of the child, who was born in 2011. At some point the parents' romantic relationship changed, and the record in this appeal indicates that the mother initiated a paternity and child-support action and the father initiated a paternity action in the Lee Circuit Court "Child Support Division." Apparently those actions were consolidated and assigned case no. CS–13–900004 ("the child-support action").¹ The record in this appeal does not contain orders entered in the child-support action; however, it contains a copy of the parties' settlement agreement in which they stipulated to the father's paternity of the child and requested an order awarding them joint custody of the child. It is undisputed that the parties shared joint custody of the child.

In July 2017, DHR received a report that the father had poured hot water on the child to punish him, and, during DHR's investigation, the child disclosed to DHR that the father had touched the child's penis and had made him feel uncomfortable. DHR had also learned that the father was "indicated" for physical abuse and bizarre discipline of his four older children from another relationship.²

On August 1, 2017, the mother filed a complaint seeking a modification of the custody judgment entered in the child-support action.³ On August 14, 2017, DHR initiated the dependency action, alleging that the child was dependent as to the father.⁴ On August 29, 2017, the mother filed in the juvenile court a complaint seeking the entry of a protection-from-abuse ("PFA") order against the father on behalf of herself and the child, which was assigned case no. CV–17–163 ("the PFA action"). The record contains an order entered in the PFA action, awarding the mother temporary custody of the child and providing that the child could not visit the father. See § 12–15–138, Ala. Code 1975 ("The juvenile court, at any time after a dependency petition has been filed, or on an emergency basis, may enter an order of protection or restraint to protect the health or safety of a child subject to the proceeding."). After a hearing in the dependency action, the juvenile court entered a judgment adjudicating the child dependent as to the father and awarding sole legal and physical custody of the child to the mother.

We first consider whether the juvenile court properly exercised subject-matter jurisdiction over the dependency action. "We review the legal question of subject-matter jurisdiction de novo." T.K. v. M.G., 82 So.3d 1, 3 (Ala. Civ. App. 2011) (citing Hill v. Hill, 89 So.3d 116, 117–18 (Ala. Civ. App. 2010) ). Section 12–15–114(a), Ala. Code 1975, provides, in pertinent part:

"(a) A juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision. A dependency action shall not include a custody dispute between parents."

The pleading that initiated the dependency action was not filed by the mother or the father as a custody dispute; rather, it was filed by DHR, alleging that the child is dependent as to the father. "Once the dependency jurisdiction of a juvenile court has been properly invoked, the juvenile court has an imperative statutory duty to conduct an evidentiary hearing to determine the dependency of the child." K.C.G. v. S.J.R., 46 So.3d 499, 501 (Ala. Civ. App. 2010). The juvenile court properly exercised its dependency jurisdiction. Furthermore, § 12–15–138 provides that a juvenile court has the authority to protect the health and safety of a child in emergency circumstances, such as those alleged by DHR in this case.

Next, we consider whether the child is a dependent child. DHR asked the juvenile court to resolve a question upon which neither this court nor our supreme court has offered guidance until today:

whether a child can be a dependent child if the child has a fit custodial parent.⁵

"Our standard of review of dependency determinations is well settled.

" ‘A finding of dependency must be supported by clear and convincing evidence. § 12–15–65(f)[, Ala. Code 1975]; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala. Civ. App. 1999). However, matters of dependency are within the sound discretion of the trial court, and a trial 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. R.G. v. Calhoun County Dep't of Human Res., 716 So.2d 219 (Ala. Civ. App. 1998) ; G.C. v. G.D., 712 So.2d 1091 (Ala. Civ. App. 1997) ; and J.M. v. State Dep't of Human Res., 686 So.2d 1253 (Ala. Civ. App. 1996).’

" J.S.M. v. P.J., 902 So.2d 89, 95 (Ala. Civ. App. 2004). This court has stated that clear and convincing 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. 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."

" ‘§ 6–11–20[ (b) ](4), Ala. Code 1975.’

" L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002)."

L.A.C. v. T.S.C., 8 So.3d 322, 326–27 (Ala. Civ. App. 2008).

A "dependent child" is defined in § 12–15–102(8)a. as "[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 subdivision (2) of Section 12–15–301[Ala. Code 1975,] or neglect as defined in subdivision (4) of 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."

In Ex parte L.E.O., 61 So.3d 1042 (Ala. 2010), L.E.O. and P.O. initiated an action by filing a petition in the Madison Juvenile Court alleging that J.I.P., Jr., a child in their care, was dependent and seeking an award of custody. 61 So.3d at 1043. The Madison Juvenile Court concluded that J.I.P., Jr., was not a dependent child. Id. A majority of our supreme court determined that, because he had been abandoned by everyone legally required to care for him, J.I.P., Jr., was a dependent child even though his father was a noncustodial parent desiring to assume his custody. Id. at 1050. Our supreme court explained:

"It is a reasonable interpretation of [former] § 12–15–1(10)[, Ala. Code 1975, the predecessor to § 12–15–102(8)(a).,] to require that, in determining whether a child is ‘in need of care or supervision,’ the juvenile court must consider whether the child is receiving adequate care and supervision from those persons legally obligated to care for and/or to supervise the child. The child is entitled to the care or supervision from those persons with the authority to take appropriate actions on behalf of the child, such as, for example, to enroll the child in school, to authorize medical care for the child, and to obtain insurance for the benefit of the child. This interpretation comports with the purposes of the [new] Alabama Juvenile Justice Act, ... § 12–15–101 et seq., Ala. Code 1975, among which are to provide children with permanency and to foster family preservation."

61 So.3d at 1047. In G.H. v. Cleburne County Department of Human Resources, 62 So.3d 540, 544 (Ala. Civ. App. 2010), this court, on the authority of Ex parte L.E.O., reiterated that, even if a child has a fit noncustodial parent willing to assume custody, the child can be dependent if the child is dependent as to the custodial parent. See also G.H., 62 So.3d at 551 (Moore, J., concurring in the result).

In this case, the parents exercised joint custody of the child. In other words, both parents were custodial parents. DHR alleged and offered testimony intended to demonstrate that the child was dependent as to the father, but it did not...