T.E. v. Calhoun Cnty. Dep't of Human Res.

344 So.3d 895

T.E.

v.CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES

T.E.

v.Calhoun County Department of Human Resources

2200369

2200370

Court of Civil Appeals of Alabama.

July 9, 2021

Gerald O. Sills of Stubbs, Sills & Frye, P.C., Anniston, for appellant.

Steve Marshall, att'y gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. att'y gen., Department of Human Resources, for appellee.

HANSON, Judge.

These appeals from judgments of the Calhoun Juvenile Court arise from ongoing dependency cases initiated in August 2019 by the Calhoun County Department of Human Resources ("DHR") as to two children, S.E. and N.E. ("the children"), born in November 2015 to C.M. ("the mother") and T.E. ("the father"). According to the dependency petitions, DHR conducted a welfare check on August 24, 2019, and ascertained that the mother, who had reportedly been drinking alcohol and smoking marijuana while the father was working in Ohio, had punched S.E. in the face, which caused lacerations and contusions necessitating treatment at a hospital emergency room. A shelter-care order entered by the juvenile court on August 26, 2019, placed the children in the custody of DHR pending subsequent orders; in December 2019, the juvenile court, after considering the parties' stipulations of facts, adjudicated the children to be dependent and placed them in the custody of DHR pending subsequent review hearings.

In February 2020, the children's guardian ad litem filed motions seeking to relieve DHR of any duty to exercise reasonable efforts to reunify the children and the parents, averring that the mother had been charged with aggravated child abuse, that the father had secured her release from detention pending a hearing on that charge, that the mother was not actively seeking rehabilitation for her substance-abuse conditions, and that the mother and the father continued to reside together. After the father and the mother filed objections to those motions, the juvenile court, following a hearing, entered orders denying those motions. Those orders were followed by permanency orders entered in June 2020 in which, based upon "an administrative paper review" of the circumstances of the children's cases conducted as a result of the COVID-19 pandemic, the juvenile court expressly determined that placement of the children in the home of the mother and the father "continue[d] to be contrary to the best interests and welfare of" the children but further noted that the most appropriate plan for the children would be "return to parent" and that a further review hearing would take place on December 16, 2020.

In late October 2020, the father filed requests in the juvenile court seeking the transfer of the children's custody from DHR to him, averring that he had "complied with all requests of [DHR], including completely changing his work schedule," and that he was "ready, willing and capable of taking custody of" the children. The juvenile court, after initially directing the parties to report to a December 9, 2020, docket call concerning the father's filings, issued orders on December 1, 2020, setting a trial for February 4, 2021. However, on December 17, 2020, the juvenile court entered orders indicating that it had held a virtual hearing via teleconference and had again concluded that the return of the children to the parents' home would not be in their best interests; however, rather than setting the cases for a review six months later, the juvenile court specified that a "review" would take place on February 4, 2021, i.e., the previously scheduled trial date.

On February 4, 2021, the juvenile court held a trial in the two cases. At trial, the father, the mother, and a representative of DHR testified. The juvenile court subsequently entered judgments summarily denying the father's custody requests and setting the cases for further review in June 2021. The father, following the denial of his motions to alter, amend, or vacate the judgments, appealed; upon a review of the record, which contains a transcript of the trial prepared by a licensed court reporter who was present, we conclude that we have jurisdiction pursuant to Rule 28(A)(1)(c)(ii), Ala. R. Juv. P., because an adequate record for appellate review is available.

The father, in his opening brief, sets forth two issues for review. First, he says, the evidence was insufficient to permit the conclusion that the children remained dependent at the time the juvenile court disposed of the father's custody requests. Second, the father asserts that, even if such evidence existed, the juvenile court's custodial disposition was erroneous. In response to DHR's brief urging affirmance of the judgments, in which DHR argued that, among other things, the juvenile court properly made implicit determinations of dependency in denying the father's custody requests, the father suggests in his reply brief that the issue of continued dependency is of jurisdictional magnitude, citing this court's recent decision in E.H. v. Calhoun County Department of Human Resources, 323 So.3d 1226 (Ala. Civ. App. 2020).

The procedural background set forth in E.H. is substantially similar to that of these cases. In E.H., a child, E.W., was found to be dependent and was placed by DHR in the care of her paternal grandparents in June 2018. In November 2019, responding to a motion filed by DHR seeking the transfer of E.W.'s custody to the paternal grandparents, E.W.'s mother, E.H., filed a motion that requested that E.W. be returned to her home, stating that she "had made behavioral and lifestyle changes, that she had participated in the individualized-service-plan ... process, and that she had completed services" provided by DHR such that E.W. could not properly be deemed dependent any longer. 323 So.3d at 1227. After a trial, the juvenile court in that case entered a judgment in February 2020 granting the relief requested by DHR and denying E.H.'s custody request, albeit without making any express determination regarding whether E.W. remained dependent. The evidence adduced at trial tended to show that E.W.'s father had a history of violent conduct, but had moved from E.H.'s residence, and that E.H. had completed one outpatient drug-treatment program but had subsequently been referred for a second drug-abuse assessment.

In E.H., the absence of any express dependency determination in the February 2020 judgment disposing of E.W.'s custody, coupled with the tendency of the evidence to disprove the existence of E.W.'s continued dependency, proved crucial, and this court reversed that judgment and remanded the cause for further proceedings:

" ‘[I]n order to make a custodial disposition of the child at the time [a] dispositional judgment [is] entered, the juvenile court [is] required to find that the child [is] dependent at the time of the disposition. T.B. v. T.H., 30 So. 3d 429, 431 (Ala. Civ. App. 2009). " ‘[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.’ " V.W. v. G.W., 990 So. 2d 414, 417 (Ala. Civ. App. 2008) (quoting K.B. v. Cleburne Cty. Dep't of Human Res., 897 So. 2d 379, 389 (Ala. Civ. App. 2004) (Murdock, J., concurring in the result)). See alsoD.D.P. v. D.M.B., 173 So. 3d 1, 3 (Ala. Civ. App. 2015) (same). If the child is not dependent at the time of the dispositional judgment, the juvenile court lacks jurisdiction to make a custody determination. M.D. v. S.C., 150 So. 3d 210, 212 (Ala. Civ. App. 2014) ; L.R.J. v. C.F., 75 So. 3d 685, 687 (Ala. Civ. App. 2011) ; see alsoC.C. v. B.L., 142 So. 3d 1126, 1129 (Ala. Civ. App. 2013) ("In light of the juvenile court's finding that the child was not dependent, the juvenile court lacked jurisdiction to enter a judgment affecting the custody of the child, including visitation.").’

" H.C. v. S.L., 251 So. 3d 793, 794 (Ala. Civ. App. 2017) ; see alsoJ.B. v. Cleburne Cty. Dep't of Human Res., 992 So. 2d 34, 49-50 (Ala. Civ. App. 2008) (Moore, J., dissenting) (explaining that, in the context of a request for the return of custody by a parent in an ongoing dependency action, a juvenile court must consider whether the child remains dependent).

".... The juvenile court made no express finding of dependency and made no factual findings relating to [E.H.]'s conduct, condition, or circumstances at the time of the entry of the judgment. Although this court has explained that, ‘ "when the evidence in the record supports a finding of dependency and when the trial court has made a disposition consistent with a finding of dependency, in the interest of judicial economy this court may hold that a finding of dependency is implicit in the trial court's judgment," ’ M.W.H. v. R.W., 100 So. 3d 603, 607 (Ala. Civ. App. 2012) (quoting J.P. v. S.S., 989 So. 2d 591, 598 (Ala. Civ. App. 2008) ), we have not always been able to affirm a juvenile court's judgment when, to do so, we would necessarily have to conclude that the juvenile court had made an implicit finding of dependency.

"In H.C., we observed that,

" ‘in a situation in which the evidence clearly supports a dependency determination but in which the juvenile court has omitted an explicit dependency finding, this court has held that a dependency determination may be implicit in the judgment. ...

" ‘In this case [i.e., H.C. ], the juvenile court found the child to be dependent at the time it entered the July 8, 2016, order. At the conclusion of the July 2016 hearing, it noted, among other things, that the mother had not resided long at her new apartment, that the mother had not yet completed her probationary period for a conviction for harassment, and that the mother had not yet completed crisis-management classes required as a condition of that probation. The juvenile court received additional evidence over the course of two days in December 2016. At the dispositional hearing, the mother presented evidence indicating that, among other

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