C.P. v. M.K.C.P. v. M.K.
Lead Opinion
This case is before us for the second time. In C.P. v. M.K.,
After the remand, the mother, C.P., filed a motion requesting that the minor child be returned to her custody. Without taking any additional testimony or other evidence, the trial court entered a judgment finding the mother to be an unfit and improper person to be entrusted with the care and upbringing of the minor child, and it again found the minor child to be a dependent child, pursuant to § 12-15-1(10), Ala.Code 1975. The trial court awarded temporary custody of the minor child to the petitioners, maternal uncle and the uncle’s wife, and awarded the mother the right of weekend visitation with her minor child.
The mother appeals again, contending that the petitioners failed to present substantial evidence to warrant the removal of custody from the parent.
Although, as previously stated, the trial court found the minor child to be dependent, the record does not contain sufficient evidence to support that finding of dependency. “Ordinarily, a judgment of dependency and subsequent transfer of custody of a child as provided for in § 12-15-71, [Ala.Code 1975], are governed by the child’s best interests. . . .” Jones v. Webb,
As in Jones, our review of the record evidence convinces us that this case is more of a custody ease than a determination of dependency case. Hence, the Terry standard applies since the custody dispute is between a parent and a nonparent. Terry, supra. Under the Terry standard, a parent has a presumptive right to custody of his or her child in a custody dispute between the parent and a nonparent, and that presumptive right may be overcome only by proof that the parent “is guilty of misconduct or neglect to a degree rendering that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question.”
The evidence presented at the original proceeding reflects that the mother was a high school student, living with her father (the child’s maternal grandfather). The maternal grandmother is deceased. The mother testified that she worked 30 to 35 hours a week, earning $4.25 per hour. She receives $366 per month in Social Security benefits as the result of her mother’s death. The 'mother further testified that she made arrangements for a babysitter to care for the minor child while the mother attended school. The maternal grandfather testified that he had agreed to care for the minor child while the mother was at work and that the minor child had his own room in the maternal grandfather’s home, where the mother lived.
The judgment of the trial court is reversed, and this case is remanded for the entry of a judgment granting custody of the minor child to the mother.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Concurrence in Part
specially concurring in part and dissenting in part.
I concur that the record does not support a finding that the mother is unfit, and, therefore, that finding must be reversed; however, I do not agree that the trial court is now required to enter a judgment granting custody to the mother. Although I concurred in the remand of the original case, upon closely revisiting this case, I am now convinced that no finding regarding fitness is required.
Although the original opinion characterized the case as one involving “a custody dispute between nonparents and a parent,” the reasoning utilized by the majority in that opinion overlooked the critical language of the longstanding precedent concerning a natural parent’s voluntary relinquishment of the right to a child’s custody. C.P. v. M.K.,
After careful reexamination and reconsideration of the facts in the present case, which were the same as those involved in the original appeal, I now realize that application of the correct legal principles mandates that in the original appeal, the judgment of the trial court should have been affirmed; as such, I now realize that I should have dissented from the majority opinion in the original appeal. Also, I now conclude that I may have been incorrect in concurring with the majority in P.M.L. v. D.T.P.,
In the original appeal of this case, this court reversed the judgment of the trial court, and remanded the cause “for the trial court to determine if the mother is an unfit and improper person to be entrusted with the care and upbringing of the minor child.” C.P.
It appears to me that the confusion in this case is the unfortunate result of an amalgamation of requirements involving custody, dependency, and the termination of parental rights. The procedural history of the case apparently ventured off course when the original petition in juvenile court alleged that the child was dependent and sought temporary custody. Following an initial hearing,
Subsequently, a hearing was held wherein the trial court considered testimony, reports, evaluations, and recommendations accumulated from the petitioners, the mother, the putative father, the child’s maternal grandfather, a neighbor of the petitioners and the mother, and social workers representing the interests of the Department of Human Resources (DHR).
At that hearing, there was conflicting evidence regarding where the child had lived and who had cared for him for most of his life, the mother’s involvement with him, the mother’s involvement with his father, the mother’s subsequent miscarriage, the mother’s immature and irresponsible behavior towards the child and others, the lack of supervision provided to the mother by the maternal grandfather, the mother’s school and employment experience, the mother’s financial resources and her lack of interest in providing for the child’s needs, etc. To further confuse the procedural history of this case, facts were asserted at that hearing that virtually track the requirements contained in the statute governing the termination of parental rights. See AJa.Code 1975, § 26-18-7.
When the original appeal was considered, I believe this court was persuaded by the procedural confusion, and that it continued off course ignoring the dependency issue. Additionally, although the ease was reviewed on appeal as a custody case, no consideration was given to the factor of Terry, supra, regarding the showing of the mother’s voluntary relinquishment of her right to custody. The relinquishment aspect of this case has not been addressed in either appeal, although the petitioners argue, and there is ample evidence in the record to support a finding, that the mother did in fact voluntarily relinquish her prima facie right to the custody of this child. Because it now appears to me that the petitioners proved the required voluntary relinquishment, a finding regarding the fitness of the mother is unnecessary if this case is considered as merely a custody dispute between a parent and a non-parent. Terry, supra. Therefore, if this case were in fact a pure custody dispute involving a non-parent and a parent, the trial court should have been affirmed on the first appeal because the Terry requirement of voluntary relinquishment had been met, and no finding regarding fitness was required.
It is also significant to me that in custody cases where there is ore tenus evidence presented, this court has historically given great deference to the discretion of the trial court hearing the case. This is because “the perception of an attentive trial judge is of great importance,” especially in custody cases. Williams v. Williams,
When the petitioners alleged that the child was dependent, that terminology triggered the trial court to utilize the dependency statutes of the juvenile code. The trial court was very clear to the parties that it viewed this case as a dependency case. From the record, it appears that the lawyers also considered the language in the statutes regarding the termination of parental rights. The unfortunate result has been the failure to consider on appeal the best interests of this child.
On remand, in addition to doing exactly as the original appeal instructed (i.e., to determine if the mother is unfit), the trial court again adjudicated the child to be a dependent child pursuant to Ala.Code 1975, § 12-15-1(10), and it placed temporary custody of the child with the petitioners, ordering liberal visitation for the mother. Obviously, the trial court is willing to do whatever it is instructed to do by this court, in order to safeguard the child’s best interests by placing the temporary custody of this child with the petitioners, who are willing to continue to provide a safe and stable environment for the child while the mother matures and prepares
The instant case is distinguishable from Jones v. Webb, 524 So.2d 374 (Ala.Civ.App.1988). That case involved two unmarried parents competing for a child’s custody where the trial court also found the child to be dependent. This court affirmed the custody change utilizing the McLendon standard. There, this court determined that the case was “more in the shape of a change of custody,” that the evidence “tends to narrowly support the trial court’s finding of dependency,” and that the mother “maintained only a marginally adequate home” for the child. It appears in Jones, supra, that the finding of dependency was only incidental to the father’s petition for custody, whereas, in the instant ease, the finding of dependency is at the very core of the trial court’s rationale and announced procedure. Furthermore, there is ample clear and convincing evidence in this record to support the finding of this child to be a dependent child.
The record in the instant case discloses that this child is the illegitimate product of a relationship between a 13-year-old girl and a 17-year-old boy. Although the putative father and his family have shown only negligible interest in this child, the relationship has resulted in a subsequent pregnancy that ended with a miscarriage. There is testimony in the record regarding the putative father’s erratic behavior and the mother’s neglect of the child to “spend more time chasing” the father. Although the mother testified that she desires to finish school, other evidence discloses her truancy and tardiness at school which has necessitated the involvement of others in attempting to supervise the mother. The maternal grandfather indicates a willingness to have his grandchild and his daughter live with him; however, he offers little or no supervision for the child’s teenage mother, and he admits his inability to properly supervise her and control her behavior.
The record further discloses that the petitioners have cared for the child since the child was only a few weeks old. Their care and concern for this child surpass a mother’s mere request that the petitioners care for the child temporarily at necessitous times. Although the mother may have visited the child, she has not maintained sufficient contact with him, she has failed to offer support for him, and she has not offered him a stable environment. Further, the record reveals that when the mother takes the child from the petitioners’ home for visitation, she generally returns the child without having cared for his immediate physical needs, such as hunger and cleanliness. Although the mother claims that she can provide housing, care, financial support, and proper supervision for the child, the record reveals that she has consistently failed to do so when afforded the opportunity. A social worker, who testified regarding the mother’s lack of parenting skills and her immaturity, also testified that DHR had an open protective services case on the child because of reports regarding possible abuse and neglect. She testified that it was not necessary for DHR to file any action seeking protective custody of this child based on the petitioners’ decision to seek this child’s custody. She further recommended
The result of the majority opinion places a three-year-old child with a sixteen-year-old mother who has had only limited involvement with the child and fails to consider the child’s best interests. This is not a case involving the irrevocable termination of parental rights, and the question of child custody is never res judicata. Dale County Department of Pensions & Security v. Robles,
Viewed another way, i.e., as a dependency case, as the trial court clearly indicated it would do, the record contains clear and convincing evidence that this child is dependent, and the finding of dependency is not challenged on appeal. Following the shelter care period, the juvenile court had the authority to place the child in the custody of the petitioners. Ala.Code 1975, §§ 12—15—62(a)(1) and 12-15-71(a)(3)c. There is no requirement to find the parent unfit when dependency is found and temporary custody is placed with a relative to protect the welfare of the child. The well-settled rule is that the best interests of the child are controlling in custody cases. Matter of Young,
Once dependency is found, the trial court is authorized “to make any number of dispositions including transfer of legal custody to a relative who, after study ... is found by the court to be qualified to receive and care for the child.” Sanders v. Guthrie,
The finding regarding dependency is supported by clear and convincing evidence, and, therefore, the trial court was authorized to proceed and award custody to the petitioners pursuant to the statute. D.K.G. v. J.H. and T.H.,