L.M.F. v. C.D.F.

293 So.3d 402

L.M.F.

v.C.D.F. and C.F.

2180203

Court of Civil Appeals of Alabama.

July 19, 2019

L.M.F., appellant pro se.

Submitted on appellant’s brief only.

THOMPSON, Presiding Judge.

On June 6, 2017, C.D.F. ("the paternal grandfather") and his wife, C.F. (hereinafter referred to collectively as "the petitioners"), filed in the Cullman Juvenile Court ("the juvenile court") a petition seeking an award of custody of B.N.F. ("the child"). The record demonstrates that the child's parents are unable to care for the child. A June 16, 2014, judgment of the juvenile court awarded custody of the child to L.M.F. ("the paternal grandmother"). That June 16, 2014, judgment specified that it was based upon an agreement of the parties to that action, i.e., the paternal grandmother and the child's parents. The action from which the June 16, 2014, judgment resulted was assigned case number JU-12-481.01.

In 2016, the Cullman County Department of Human Resources ("DHR") initiated a dependency action, which was assigned case number JU-12-481.02. As a part of that action, the child was removed from the paternal grandmother's home based on allegations that the paternal grandmother was using illegal drugs. The record indicates that the child was placed in the home of the petitioners.

On June 6, 2017, the petitioners, proceeding pro se, filed the petition that initiated the current action, case number JU-12-481.03. The petitioners alleged that the paternal grandmother had used illegal drugs and that, as a result, the child had been placed in their home by DHR and had remained there since November 2016. On June 15, 2017, the juvenile court entered a pendente lite order in this action specifying that the petitioners and the paternal grandmother would share joint physical custody of the child, alternating weekly, pending a final hearing on the petition. On July 26, 2017, the paternal grandmother, who was also proceeding pro se, moved to dismiss the petitioners' action. She later filed a motion seeking an immediate return of custody of the child to her, and she also amended her motion to dismiss.

On August 9, 2018, the juvenile court entered a judgment in case number JU-12-481.02 dismissing that dependency action and relieving DHR from providing further services to the family.

On September 27, 2018, the juvenile court entered an order in this action denying the paternal grandmother's motion to dismiss the petitioners' claims. The juvenile court conducted a hearing in this action on November 14, 2018.

On November 15, 2018, the juvenile court entered a judgment in which it modified the June 16, 2014, custody determination; it awarded custody of the child to the petitioners and awarded the paternal grandmother visitation with the child. The paternal grandmother, proceeding pro se, timely appealed.

The grandmother argues that the petitioners sought to modify the final custody judgment that had awarded her custody of the child. In an action seeking to modify a final custody award entered in a dependency action, a party must meet the evidentiary standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). In this case, the petitioners' June 6, 2017, petition contained allegations apparently similar to those contained in DHR's 2016 petition. However, the juvenile court dismissed DHR's dependency action. After DHR's dependency action was dismissed, the juvenile court scheduled a hearing on "the grandparents' petitions for custody." In its November 15, 2018, judgment, the juvenile court stated that the matter was before it on the petitioners' "petition for custody." The juvenile court made findings that both the paternal grandmother's and the paternal grandfather's substance-abuse issues were in the past. However, the juvenile court did not mentioned the McLendon standard or any other standard in its November 15, 2018, judgment. Given the foregoing, we conclude that the paternal grandmother is correct that this matter was in the nature of a custody dispute and was not a dependency action. See J.A.P. v. M.M., 872 So. 2d 861, 866 (Ala. Civ. App. 2003) (action was in the nature of a custody dispute rather than a dependency action).

The paternal grandmother argues on appeal that the juvenile court erred in conducting the hearing without first swearing in the parties and in entering the judgment without any evidentiary support. In her appellate brief, the paternal grandmother cites L.W. v. Cullman County Department of Human Resources, 181 So. 3d 1070 (Ala. Civ. App. 2015). In that case, L.W., the mother, argued that the juvenile court had erred in entering a judgment awarding custody of her minor child to a third party. The mother argued that she had not received notice of the proceedings and that the juvenile court had not received any evidence at the hearing conducted before it entered its judgment. The appellee in that case, the Cullman County DHR, conceded that "the judgment was entered in a manner inconsistent with the mother's due-process rights." L.W. v. Cullman Cty. Dep't of Human Res., 181 So. 3d at 1071. Accordingly, this court reversed the judgment and remanded the cause to the juvenile court. L.W. v. Cullman Cty. Dep't of Human Res., supra. Given the foregoing, the paternal grandmother's arguments on appeal are sufficient to raise a due-process argument.

In this case, only the parties, the guardian ad litem, and the attorney appointed in DHR's dependency action to represent the father were present at the November 14, 2018, hearing. The father's attorney, who appeared without his client, made a representation regarding the father's whereabouts at the time of the hearing and was excused from the proceeding. The guardian ad litem arguably made a few representations, or at least summaries of the parties' positions, to the juvenile court. "The unsworn statements, factual assertions, and arguments of counsel are not evidence." Ex parte Russell, 911 So. 2d 719, 725 (Ala. Civ. App. 2005). Thus, any arguments or representations made by the father's attorney or by the guardian ad litem before the juvenile court did not constitute evidence. Ex parte Russell, supra ; Ex parte Dean, 137 So. 3d 341, 347-48 (Ala. Civ. App. 2013).

The parties themselves appeared before the juvenile court pro se. They were not sworn in to testify. The paternal grandmother characterizes the hearing as a discussion before the juvenile court that was composed of "just general comments" by the parties. The record supports that characterization of the hearing.

The hearing began as an unsuccessful effort by the juvenile court to encourage the parties to reach an agreement concerning custody of the child, and those efforts continued well into the hearing. Also, throughout most of the hearing, the guardian ad litem encouraged the parties to reach an agreement as well, and he attempted to facilitate their settling the dispute.

Although the efforts of the juvenile court and the guardian ad litem might have been well-intentioned, it was not the role of the juvenile court or the guardian ad litem to mediate a settlement between the parties in lieu of the scheduled evidentiary hearing; it does not appear that the parties agreed to such an arrangement.

Other than the attempts to have the parties reach a settlement, much of the remainder of the hearing involved the juvenile court's and the parties' discussion of the parents' circumstances, both past and present, and their mutual hopes that the parents could adjust their circumstances to properly meet the needs of the child. During the hearing, the parties also talked about their concerns about the difficulties of managing the holidays when sharing custody of a young child. The juvenile court then discussed with the parties a number of local holiday events that children would enjoy. Throughout the hearing, the parties and the juvenile court consistently spoke over each other and interrupted each other. The juvenile court also made reference to having governed these parties' disputes, or the actions involving DHR, for a number of years, to being familiar with past reports from DHR and a court-appointed special advocate, and to having spoken in chambers with the guardian ad litem before the hearing.¹

In this case, although the parties received notice that the case was "set for a trial on the grandparents' petitions for custody on November 14, 2018," the juvenile court conducted the hearing more in the nature of a discussion. The parties were all pro se, and none were sworn in. Thus, there is no consequence, in the form of being subject to an allegation of perjury, for any false or misleading statements the parties might have made before the juvenile court. See Ex parte Williams, 268 Ala. 535, 539, 108 So. 2d 454, 459 (1958) (If "the statement is not under oath the maker of it does not make himself liable to the penalties for perjury if the statement be untrue.").

"The taking of some kind of an oath has always been prerequisite to the consideration of any testimony offered in a court of justice. That rule is recognized in this state by Code 1923, § 76549 [now codified at § 12-21-135, Ala. Code 1975 ], which provides: ‘All testimony, except as otherwise directed, must be given in open court on the oath or affirmation of the witness.’ ‘The casuistical position that an oath does not increase the obligation to speak the truth is not a maxim of the common law.’ Jones on Ev. par. 2089. The oft-repeated expression: ‘I was talking then, but swearing now,’ is familiar to all lawyers, and has been frequently alluded to in the law books and in literature, since as a result of teaching such a philosophy Socrates was caused to drink the hemlock for having taught such a doctrine to the youth of Athens. For the reason that such a doctrine has always more or less permeated the human mind, a man of the most exalted virtue, though judges and jurors might place the utmost confidence in his declarations, cannot be heard in a court of justice without an oath.

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