W.M. v. B.J.B.

343 So.3d 527

W.M.

v.B.J.B.

2200103

Court of Civil Appeals of Alabama.

June 25, 2021

Bill G. Hall and Catherine E. Garland of Bill G. Hall & Associates, P.C., Huntsville, for appellant.

Submitted on appellant's brief only.

EDWARDS, Judge.

A 2015 dependency and custody judgment entered by the Madison Juvenile Court ("the juvenile court") placed H.V. ("the child") in the custody of B.J.B. ("the maternal great-grandmother"). In that judgment, W.M. ("the paternal grandmother") was awarded visitation as often as the parties could agree but, in no event, less than every other weekend and other specified holiday visitation. In September 2019, the paternal grandmother filed a petition in the juvenile court seeking a modification of the 2015 judgment and requesting that she be awarded custody of the child. The paternal grandmother's modification petition was based on allegations that the child had suffered severe bruises caused by either the maternal great-grandmother or the child's half siblings, whom the maternal great-grandmother had adopted; that the maternal great-grandmother had failed to adequately supervise the child and his half siblings; that the maternal great-grandmother had begun suffering from extreme forgetfulness; that the maternal great-grandmother was also caring for her husband, who suffers from Alzheimer's disease, and would lock her husband and the children in the house when she left; and that the maternal great-grandmother's house had electrical problems that might create a fire hazard.

During the pendency of the paternal grandmother's modification action, the paternal grandmother filed a motion seeking to have the maternal great-grandmother held in contempt for failing to comply with the visitation provisions of the 2015 judgment. At the trial, which was held on July 31, 2020, the juvenile-court judge stated on the record at least five times that he wanted to see how the school year started with virtual learning, as a result of the COVID-19 pandemic, before he made his decision about custody. He also stated that "if there's any problems I assume that either attorney is going to let me know what's going on, if it's not working," that "if there's a problem, you need to let me know," that "[i]f you detect a problem, I need you to let me know," and that "if there's a problem[,] I need the lawyers to let me know, and I assume that you'll let me know." However, the juvenile court did not enter an order instructing the parties to submit evidence regarding the child's grades or conduct at school.

On September 15, 2020, the maternal great-grandmother filed a "Notice to the Court" ("the notice") in which she summarized the child's progress in reading after the completion of a summer reading program, explained the delays in sharing virtual-school information with the paternal grandmother, listed the child's grades, included statements indicating that the child's maternal great-aunt had reported "significant progress" in the child's education, and informed the juvenile court that the child had been diagnosed with attention-deficit/hyperactivity disorder and was currently in the process of having his medication adjusted to better address that condition. The notice was not verified or even signed by the maternal great-grandmother.¹ The paternal grandmother moved to strike the notice, arguing that it was unsworn, contained self-serving and unsubstantiated statements, contained hearsay, and was not subject to cross-examination. The juvenile court denied the motion to strike on September 18, 2020, stating in its order that it had "told both sides to submit any updates of the progress/regress of the child's learning, with a cutoff of September 8, 2020. The [paternal grandmother] presented nothing for consideration, while [the maternal great-grandmother] offered a report dated September 14th."

On September 23, 2020, the juvenile court entered a judgment, which it had rendered on September 18, 2020, denying the paternal grandmother's request for a modification of the child's custody; it amended the judgment that same day to provide specific directions regarding the information relating to the child's medical care and education that the maternal great-grandmother was to provide to the paternal grandmother.² The paternal grandmother filed a postjudgment motion on October 6, 2020, in which, among other things, she again asserted that the notice was due to be stricken, that she should have at the least been given the opportunity to respond to the notice after the juvenile court denied her motion to strike, and that the juvenile court improperly considered the information in the notice as evidence because the notice was not verified and had been presented to the juvenile court outside open court, which deprived her of the right to cross-examine the maternal great-grandmother about the information contained in the notice.

The juvenile court set a hearing on the paternal grandmother's postjudgment motion for October 23, 2020, which was after the date the paternal grandmother's postjudgment motion would be deemed denied by operation of law. See Rule 1(B), Ala. R. Juv. P. (providing that a postjudgment motion directed to a juvenile court's judgment must be ruled on within 14 days or it is deemed to be denied by operation of law). At the October 23, 2020, hearing, the juvenile court stated on the record that it had considered information contained in records from the Department of Human Resources ("DHR") indicating that the child had been "coached" regarding allegations against the maternal great-grandmother when it reviewed those records in camera "to see if [it] was going to give them in discovery." The juvenile court had determined that the DHR records were not relevant and, thus, had not permitted the paternal grandmother to subpoena them. Although the juvenile court purported to make small amendments regarding the sharing of information between the parties in a postjudgment order entered on October 26, 2020, that order was a nullity. See M.A.J. v. S.B., 99 So. 3d 1244, 1246 (Ala. Civ. App. 2012). The paternal grandmother filed a timely notice of appeal on October 28, 2020.

On appeal, the paternal grandmother makes two arguments in favor of reversal. She first contends that she presented sufficient evidence to meet the test for the modification of custody set out in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). She also challenges the juvenile court's consideration of information contained in the notice submitted to the juvenile court by the maternal great-grandmother and in the DHR records that it had reviewed in camera.

In support of her argument that the juvenile court impermissibly considered the factual statements contained in the notice submitted by the maternal great-grandmother, the paternal grandmother relies on Rogers v. Rogers, 307 So. 3d 578 (Ala. Civ. App. 2019), which involved the consideration of a guardian ad litem's report that was submitted after the close of the evidence. As the paternal grandmother correctly argues, both this court and our supreme court have previously explained that a trial court's judgment should be " ‘based on evidence produced in open court lest the guarantee of due process be infringed.’ " Ex parte R.D.N., 918 So. 2d 100, 104 (Ala. 2005) (quoting Ex parte Berryhill, 410 So. 2d 416, 418 (Ala. 1982) ); see also Rogers, 307 So. 3d at 588 & 592 (quoting R.D.N. and Berryhill, respectively); Rule 43(a), Ala. R. Civ. P. ("In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided in theses rules."). In Rogers, we determined that the trial court's reliance on a guardian ad litem's report submitted after the close of the evidence was error because the mother in that case had been unable to respond to certain facts stated and opinions expressed by the guardian ad litem through cross-examination or otherwise and that the consideration of the report therefore violated the due-process rights of the mother. Rogers, 307 So. 3d at 592. We also determined that the error was prejudicial to the mother because the trial court had necessarily relied on the information in the guardian ad litem's report to conclude that the mother's boyfriend was a drug addict and that he posed a danger to the children because no testimonial or documentary evidence admitted at trial could have supported those factual determinations. Id.

Although the notice submitted by the maternal great-grandmother in the present case was not the report of a guardian ad litem, the notice, like the report at issue in Rogers, contained unsworn factual statements regarding the child's progress in virtual school, his improvement in reading, and his conduct, which had become an issue in the previous school year. The paternal grandmother was not permitted to cross-examine the maternal great-grandmother about those statements or to object to the hearsay contained in the notice. At the tardy hearing on the paternal grandmother's postjudgment motion, the juvenile court stated the following on the record:

"Let me say this. I do remember saying that my concern was and still my biggest concern in this case was whether [the maternal great-grandmother] was going to be able to oversee and ensure that [the child] was doing the virtual schooling. And when we left out of here, which I think we had our hearing the week before school [began], I said I'm going to keep this open until the end of August and I need

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