248 So. 3d 13
Ala. Civ. App.2017Background
- Mother (then a minor) appealed juvenile-court judgments adjudicating her two children dependent and transferring custody to paternal relatives following a December 12, 2016 hearing.
- Multiple related cases: paternal grandmother filed for custody of one child; DHR filed dependency petitions for both children; same guardians ad litem were appointed.
- At the December 12 hearing, counsel for DHR, relatives, and guardians stipulated to a permanency plan transferring custody to paternal relatives; mother objected and was represented by counsel but did not appear in person.
- No testimony or evidence was introduced at the December 12 hearing; the court nonetheless entered judgments on December 28, 2016, finding the children remained dependent and awarding custody to relatives.
- Mother moved to alter/amend; the postjudgment motion was denied and she appealed. Appellate briefing included a supplemental brief raising whether dependency was proven by clear and convincing evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether children remained dependent at the Dec. 12 hearing | Mother: DHR/petitioners failed to prove dependency by clear and convincing evidence; no evidentiary hearing occurred | DHR/relatives: juvenile court properly adopted permanency plan and could disposition the case | Held: Reversed — no clear and convincing evidence was presented; adjudications unsupported |
| Whether stipulation or prior stipulation excused an evidentiary hearing | Mother: prior stipulation to dependency earlier does not bar her from contesting dependency after rehabilitation efforts | DHR/relatives: reliance on prior proceedings/stipulations justified disposition | Held: Prior stipulation did not excuse the required evidentiary hearing when mother objected at the Dec. 12 hearing |
| Whether unsworn reports/record materials could support dependency findings | Mother: Unadmitted reports and counsel argument are not evidence and cannot support dependency findings | DHR/relatives: court record contains reports and arguments supporting transfer (DHR did not file appellee brief) | Held: Court may not consider unadmitted reports or counsel argument as evidence; those materials were not properly before the juvenile court |
| Whether transfer of custody to relatives could occur without competency evidence of prospective custodians | Mother: Court needed competent evidence of suitability before transferring custody | DHR/relatives: transfer via permanency plan was appropriate at hearing | Held: Transfer without competent, admissible evidence of dependency or custodian suitability was improper; remanded for further proceedings |
Key Cases Cited
- J.K. v. Lee County Dep't of Human Res., 668 So.2d 813 (Ala. Civ. App. 1995) (procedural guidance on Anders-style no-merit practice in dependency appeals)
- L.F. v. Cullman Cty. Dep't of Human Res., 175 So.3d 183 (Ala. Civ. App. 2015) (reversed dependency adjudications where record contained no admissible evidence)
- Ex parte McInish, 47 So.3d 767 (Ala. 2008) (discussion of clear-and-convincing standard and appellate review prism)
- C.O. v. Jefferson Cty. Dep't of Human Res., 206 So.3d 621 (Ala. Civ. App. 2016) (definition and application of clear-and-convincing standard)
- KGS Steel, Inc. v. McInish, 47 So.3d 749 (Ala. Civ. App. 2006) (evidentiary sufficiency standard analogy for clear-and-convincing review)
- M.P.G. v. Jefferson Cty. Dep't of Human Res., 215 So.3d 1096 (Ala. Civ. App. 2016) (stipulation to dependency does not preclude later claim of rehabilitation)
- Ex parte Russell, 911 So.2d 719 (Ala. Civ. App. 2005) (unsworn statements and counsel argument are not evidence)