142 So. 3d 1126
Ala. Civ. App.2013Background
- Child placed in maternal grandmother B.L.'s custody by juvenile court in 2003; mother incarcerated; father no longer involved.
- Paternal grandfather C.C. filed a dependency petition (Jan 2011) seeking custody, alleging neglect, unstable housing, excessive school absences, and third-party placements under the maternal grandmother’s care.
- Hearing held Dec. 26, 2012; paternal grandfather presented no live witnesses and relied on earlier evidence not included in the record on appeal.
- Maternal grandmother contested dependency; guardian ad litem recommended denial based on lack of evidence and her investigation.
- Juvenile court found it could not make a dependency finding, denied the petition (but should have dismissed it), and therefore declined to adjudicate custody or visitation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the child is dependent under juvenile-court standards | C.C.: child is dependent due to neglect, unstable home, school absences, third-party placements | Maternal grandmother: petitioner failed to prove dependency; custody comparisons irrelevant | Held: No dependency finding — petitioner failed to meet burden; record lacks evidence to establish dependency |
| Whether juvenile court could award custody/visitation absent a dependency finding | C.C.: court should grant custody/visitation to grandfather based on alleged unfitness | Maternal grandmother: court lacks jurisdiction to alter custody without dependency | Held: Juvenile court lacked jurisdiction to decide custody/visitation because no dependency was found |
| Proper disposition when petition not proven by clear and convincing evidence | C.C.: sought denial and custody relief | Maternal grandmother: dismissal appropriate when allegations unproven | Held: Petition must be dismissed under § 12-15-310(b); court erred in denying rather than dismissing (remanded to dismiss) |
| Appellate-review burden when evidence exists only in lower-court file but not in appellate record | C.C.: relied on prior pendente lite evidence presented earlier to juvenile court | Maternal grandmother: absence of that evidence in record precludes appellate relief | Held: Appellant bears burden to include evidence in record; appellate court will not assume trial-court error without record evidence |
Key Cases Cited
- C.E.W. v. P.J.G., 14 So.3d 166 (Ala. Civ. App. 2009) (custodian filing termination/dependency petition bears burden of proof)
- Ex parte Big Four Coal Min. Co., 213 Ala. 305, 104 So. 764 (Ala. 1925) (party asserting claim must carry burden of proof)
- Leeth v. Jim Walter Homes, Inc., 789 So.2d 243 (Ala. Civ. App. 2000) (appellant must present an adequate record to show trial-court error)
- Dunlap v. Regions Fin. Corp., 983 So.2d 374 (Ala. 2007) (appellant’s duty to ensure appellate record permits review)
- J.A. v. C.M., 98 So.3d 958 (Ala. Civ. App. 2012) (juvenile court may make dispositional orders only after finding dependency)
- K.C.G. v. S.J.R., 46 So.3d 499 (Ala. Civ. App. 2010) (if child not dependent, juvenile court must dismiss petition)