S.L.M. v. S.C.S.L.M. v. S.C.
- Reporters:
- , ,
- Before:
- Donaldson
Lead Opinion
S.L.M. and R.S.M. appeal the order of the Juvenile Court of Etowah County (“the trial court”) transferring custody of S.D.A. and R.D.A. (“the children”) to their maternal grandmother, S.C. (“the maternal grandmother”). On appeal, S.L.M. and R.S.M. argue that the trial court erred in finding the children to be dependent in their care, that the maternal grandmother failed to present sufficient evidence to meet the standard to justify a change of custody set out in Ex parte McLendon,
C.G. is the mother of the children. C.G. (“the mother”) gave birth to one other
On October 11, 2011, the mother gave birth to R.D.A. On November 8, 2011, S.L.M. filed a dependency petition seeking temporary custody of R.D.A., and, that same day, the trial court adjudicated R.D.A. to be dependent and proceeded to conduct a dispositional hearing. The trial court awarded S.L.M. and R.S.M. custody of R.D.A., stating that “the case may be set for hearing upon petition of the mother.”
On May 30, 2012, the maternal grandmother filed a “Petition to Intervene and For Custody” in the action relating to each child. The petitions specifically allege that the children are dependent as to the mother and the biological father and acknowledged that the children might be in the temporary custody of S.L.M.; however, the petitions do not specifically allege that the children are dependent while in S.L.M.’s custody. The trial court held a hearing on the petitions and heard testimony ore tenus from all parties. No party objected to the proceedings, which were in the nature of a hearing as to the dependency of the children, not a custody-modification hearing. The trial court entered an order in both actions on August 21, 2012, finding:
“Upon consideration of the pleadings and proof ore tenus, it appears to the Court that the children were placed with [S.L.M. and R.S.M.] through a Safety Plan by the Department of Human Resources. The custody arrangement was made based on the fact that the mother informed DHR that [S.L.M.] was her sister and [S.L.M.] did nothing to refute that information. The mother and [S.L.M.] are not related. Custody was apparently determined based on that misinformation.
“The [maternal grandmother] testified that she had tried, unsuccessfully, to find the location of the children and when that information was finally ascertained, she filed this petition for custody. The mother of the children and [S.L.M.] knew the location of the [maternal] grandmother, but did not attempt to inform her of the circumstances regarding the children.”
“ ‘Our standard of review of dependency determinations is well settled.
“ ‘ “A finding of dependency must be supported by clear and convincing evidence. § 12—15—65(f)[, Ala. Code 1975][3 ]; M.M.S. v. D.W.,735 So.2d 1230 , 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court’s ruling on a dependency action in which evidence is presented ore ten-us will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep’t of Human Res.,716 So.2d 219 (Ala.Civ.App.1998); G.C. v. G.D.,712 So.2d 1091 (Ala. Civ.App.1997); and J.M. v. State Dep’t of Human Res.,686 So.2d 1253 (Ala.Civ.App.1996).”
“ ‘J.S.M. v. P.J.,902 So.2d 89 , 95 (Ala. Civ.App.2004)....’
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"3 The requirement that a finding of dependency must be supported by clear and convincing evidence before the dispositional phase of a dependency proceeding is now codified at§ 12-15-311(a), Ala.Code 1975 .”
J.L. v. W.E.,
“ ‘[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly [as clear and convincing is defined by § 25-5-81(c) ] establish the fact sought to be proved.’
“KGS Steel[,lnc. v. McInish], 47 So.3d [749,] 761 [ (Ala.Civ.App.2006) ].
“... ‘[T]he judge must view the evidence presented through the prism of the substantive evidentiary burden’; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court’s weighing of the evidence, that would ‘produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’ § 25-5-81(c).
“In reviewing a decision of the trial court, an appellate court is not permitted to reweigh the evidence, because weighing the evidence is solely a function of the trier of fact. However, it is the function of the appellate court to ascertain that the trial court’s findings of fact are supported by substantial evidence with due regard to, and respect for, the appropriate level of evidentiary proof required, which in this case is clear and convincing.”
Ex parte McInish,
On appeal, S.L.M. and R.S.M. first argue that they are fit and proper legal custodians as to both children, and therefore, they assert, the children are not dependent children as defined in
As a threshold matter, we first note that none of the parties address the issue whether the children are dependent as to the mother or the alleged biological father. Further, although S.L.M. and R.S.M. argue that the maternal grandmother bore the burden at trial of proving that the children were dependent while in their custody, S.L.M. and R.S.M. made no objection at trial to the matter proceeding as either a dependency action or any other form of action.
In the original “custody order” entered in S.D.A.’s case on May 10, 2011, the trial court did not explicitly make a finding of dependency, despite the fact that the case originated from a dependency petition, but, nevertheless, it awarded “temporary legal care, custody, and control” of S.D.A. to S.L.M. Although the trial court’s May 2011 “custody order” did not explicitly contain a finding of dependency as to S.D.A., such a finding was implicit based on the nature of the proceedings:
“‘[T]his court has held 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.’ J.P. v. S.S.,989 So.2d 591 , 598 (Ala.Civ.App. 2008).”
M.W.H. v. R.W.,
The trial court’s August 2012 order finding that “the children were placed with [S.L.M. and R.S.M.] through a Safety Plan by the Department of Human Resources” is not accurate based on the supplemented record. The record does not indicate that S.D.A. has previously been explicitly adjudicated to be dependent, and the trial court’s May 2011 temporary-custody order gave custody to S.L.M. only, failing to mention R.S.M. R.D.A. has previously been explicitly adjudicated dependent by the November 2011 order, and her custody was transferred to S.L.M. and R.S.M. The transcript from the hearing on the maternal grandmother’s petitions raises questions as to whether the trial court had the records of the prior proceedings before it at the time of the hearing below or when it entered the August 2012 order, as evidenced by a telephone call made from the bench during the hearing inquiring after those records. Also, the trial court’s finding that “the mother informed DHR that [S.L.M.] was her sister and [S.L.M.] did nothing to refute that information” is contradicted by the April 22, 2011, DHR court report contained in the supplemented record. In the “Summary/Recommendations” section of that court report, DHR notes that “[the mother’s] oldest daughter is in the custody of her mother, [the maternal grandmother,] and her second child [S.D.A. is] in a safety plan with her ex-step sister, [S.L.M.].” Thus, the DHR report in the supplemented record shows that DHR was aware that the mother and S.L.M. are not sisters and that DHR was aware of the existence of the maternal grandmother and knew that she had custody of the mother’s oldest child. The record does not reflect any efforts by DHR to contact the maternal grandmother or to consider her or any other relative as a custodian of the children, presumably due to the desire of the mother to have S.L.M. designated as the children’s custodian.
The trial court’s August 2012 order does not indicate what standard it applied in awarding custody to the maternal grand
“If the allegations of the juvenile petition are denied, the juvenile court shall direct that testimony of witnesses be taken. A dependency hearing shall be conducted consistent with legal and due-process requirements and shall proceed generally in a manner similar to the trial of a civil action before the court sitting without a jury.... At the close of the hearing, the juvenile court shall make one of the following findings in writing:
“(1) That the facts alleged in the juvenile petition are true and the child is dependent, in need of supervision, or delinquent; or
“(2) That the facts alleged in the petition are not proved or that the child is not in need of care or rehabilitation or supervision, in which event the juvenile petition shall be dismissed.”
As a threshold matter, the trial court’s August 2012 order does not make the required finding as to whether the children were dependent as of the time of the hearing rather than when the trial court made its initial determinations in the actions into which the maternal grandmother petitioned to intervene, and, moreover, the order fails to identify the specific grounds to support a finding of dependency pursuant to
Because there had been an explicit prior determination that R.D.A. was dependent and an implicit determination of dependency as to S.D.A., the trial court was required to determine, by clear and convincing evidence, whether, as of the time of the hearing, the children were dependent while in the custody of their respective custodians — i.e., S.L.M. for S.D.A. and S.L.M. and R.S.M. for R.D.A. A finding of dependency must be made separately as to each child before the trial court may determine whether the maternal grandmother should have custody. The trial court’s August 2012 order is not sufficient to infer that such determinations of dependency have been made. Therefore, we remand this cause to the trial court for it to make, based on the existing record, the written findings required by Rule 25(A), Ala. R. Juv. P., as to whether each child is dependent as to her custodian or custodians and, if so, identifying the grounds supporting the findings of dependency. If the trial court finds that the child was not dependent as to her custodian or custodians, the petition should be dismissed as to that child. The trial court shall make due return to this court within 42 days of the release of this opinion.
REMANDED WITH INSTRUCTIONS.
Notes
. During the pendency of this appeal, S.L.M. and R.S.M. moved the trial court to supplement the record on appeal, primarily seeking to include the petitions previously filed and the orders previously entered in the underlying actions below. The maternal grandmother opposed that motion in the trial court, but the trial court granted the motion. The maternal grandmother has moved to strike the supplemental materials. However, the maternal grandmother's brief cites to the supplemented record on multiple occasions, without any indication that she objected to the inclusion of the supplemental materials. Further, if the supplemented record were not before us, this court would have acted on its own initiative to supplement the record because the supplemental materials are clearly relevant to the matters at issue. See Rule 10(f), Ala. R.App. P. ("The appellate court may, on the motion of a party or on its own initiative, order that a supplemental or corrected record be certified and transmitted to the appellate court if necessary to correct an omission or misstatement....”). The prior petitions and the prior orders of the trial court are directly at issue in this matter and are properly before us.
. Ex parte McInish was a workers' compensation case. The statute defining "clear and convincing evidence” referred to in Ex parte Mclnish —
.
"Dependent child, a. A child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:
"1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in subdivision (2) of Section 12-15-301 or neglect as defined in subdivision (4) of Section 12-15-301, or allows the child to be so subjected.
"2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
“3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.
"4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state.
"5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 12-15-301.
"6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.
"7. Who has been placed for care or adoption in violation of the law.
"8. Who, for any other cause, is in need of the care and protection of the state.
"b. The commission of one or more status offenses as defined in subdivision (4) of Section 12-15-201 is not a sufficient basis for an adjudication of dependency.”
Dissenting Opinion
dissenting.
I respectfully dissent from the decision to remand this cause to the juvenile court. In my opinion, the record does not support the need for a remand, because it does not contain evidence from which the juvenile court could conclude that the children are dependent in the care of their custodian or custodians. I would, therefore, reverse the judgment of the juvenile court and remand the cause for entry of a judgment dismissing the dependency petitions.
S.C. (“the maternal grandmother”) filed dependency petitions regarding the children. In her petitions, she alleged that the children were dependent due to the conduct of their mother, C.G. However, the children’s dependency resulting from
MOORE, J., concurs.
On Return to Remand
On April 12, 2013, we remanded this action to the Etowah Juvenile Court (“the trial court”). We were unable to determine from the final order of the trial court the basis for its decision to change the custody of S.D.A. and R.D.A. (“the children”) to S.C. (“the maternal grandmother”). Based on the argument of the children’s custodians, S.L.M. and R.S.M., that the trial court had erred in finding the children to be dependant, we instructed that court, based on the existing record, to make the written findings required by Rule 25(A), Ala. R. Juv. P., as to whether the children were dependant as to S.L.M. and R.S.M., and, if so, to identify the grounds supporting the findings of dependency. S.L.M. v. S.C.,
“[T]he Maternal Grandmother of the child[ ] did not raise the issue that the minor child was dependent at the hands of the Custodians of the minor child, to wit: [S.L.M. and S.R.M.], and no dependency of the minor child at the hands of the Custodians is found.
“2. The [maternal grandmother] filed a petition for custody of the minor child.... The [maternal grandmother] was not aware of the existence of the minor child until after custody was awarded to a non-relative. When the [maternal grandmother] found out about her granddaughter, she filed the Petition for Custody which this Court ruled on.
“3. The Court heard evidence at [a] hearing addressing the Petition for custody .... The [maternal grandmother] provided testimony that she is a fit and proper person to have the care, custody and control of the granddaughter. She also has custody of the minor child’s older half sibling.
“4. At the hearing the mother of the minor child testified that the present custodians let her have overnight visits with the minor child. The mother also testified that she was still using drugs and still had a problem with them. She also testified that she did not want [the maternal grandmother] to have custody of the minor child because she would hold her accountable for using drugs and restrict her visits with the minor child if the mother was using drugs, but the present custodian understood her drug use even though it would make her mad. The Court was greatly disturbed'by this, and concerned that the minor child was being exposed to the situation which removed her from her natural mother in the first place. It was clear and convincing evidence from the testimony of all the parties, that the [maternal grandmother] limits the contact between the mother and the older half-sibling but that the present custodians of the minor child [do] not.
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“5. After the hearing the testimony of all the parties, the Court entered an Order granting custody to the [maternal grandmother]. The custody Order was not based on the dependency of the minor child, even though the child does not have a parent who is willing to discharge her responsibilities to and for the child, with the natural mother of the child being addicted to Drugs.
“Based on the evidence, the Court finds that there has been a material change in circumstances in this case and that the positive good brought about by the modification would more than offset the inherently disruptive effect caused by uprooting the child. The child is young and the court finds that the young child will adapt to the circumstances. She would be living with a loving grandmother, with her other siblings.
“The Court finds that the positive good brought about by the change of custody would offset any disruption that might be caused. By granting custody of the child to the petitioner/grandmother, all of the children would be together, and be protected from their mother who admitted to still using drugs.
“This Court feels that the [Ex parte] McLendon [,455 So.2d 863 (Ala.1984),] standard has been met and the custody change is correct.”
The trial court has clarified that the proceedings on the maternal grandmother’s petitions were not conducted as dependency actions. Thus, the first issue raised by S.L.M. and R.S.M. on appeal, alleging
The trial court’s orders on remand clarified that custody of the children was changed from S.L.M. and R.S.M. to the maternal grandmother after applying the standard announced in Ex parte McLendon,
“The noncustodial relatives appeal the judgments insofar as they denied their petitions seeking custody of the children and terminated the award of specified visitation to them. The noncustodial relatives filed petitions seeking custody of the children, in which they asserted that the children’s best interests would be better served if custody were modified. Once a juvenile court has placed a dependent child into the ‘permanent’ custody of a proper caregiver, the dependency of the child ends and any further change of custody is governed by the standards set forth in Ex parte McLendon,455 So.2d 863 (Ala.1984). See Ex parte J.P.,641 So.2d 276 , 278 (Ala.1994) (applying the McLendon standard in a custody dispute between two sets of relatives when one set of relatives had been awarded custody under a prior judicial order). Thus, the noncustodial relatives were required to meet the McLendon standard in order to be entitled to a modification of the custody of the children. As our supreme court reaffirmed in Ex parte Cleghorn,993 So.2d 462 , 466-67 (Ala.2008):
“ ‘In Ex parte McLendon, we held that the trial court cannot order a change of custody “ ‘unless [the party seeking the change of custody] can show that a change of the custody will materially promote [the] child’s welfare.’ ”455 So.2d at 865 (quoting Greene v. Greene,249 Ala. 155 , 157,30 So.2d 444 , 445 (1947)). We noted inEx parte McLendon that “[i]t is important that [the party seeking the change in custody] show that the child’s interests are promoted by the change, i.e., that [the party seeking the change in custody] produce evidence to overcome the ‘inherently disruptive effect caused by uprooting the child.’ ” 455 So.2d at 866 .’
“Our supreme court has also stressed that ‘[t]he McLendon standard is a “rule of repose,” meant to minimize disruptive changes of custody because this Court presumes that stability is inherently more beneficial to a child than disruption.’ Ex parte Cleghorn,993 So.2d at 468 . As noted above, the record contains evidence indicating that the children make good grades and are doing well in the custody of the custodians. Nothing in the record would support the conclusion that the children’s best interest would be served by modifying custody and removing the children from the home of the custodians. Accordingly, we affirm the juvenile court’s judgments insofar as they denied the noncustodial relatives’ custody petitions.”
“Based on the evidence, the Court finds that there has been a material change in circumstances in this case and that the positive good brought about by the modification would more than offset the inherently-disruptive effect caused by uprooting the child. The child is young and the court finds that the young child will adapt to the circumstances. She would be living with a loving grandmother, with her other siblings.
“The Court finds that the positive good brought about by the change of custody would offset any disruption that might be caused. By granting custody of the child to the petitioner/grandmother, all of the children would be together, and be protected from their mother who admitted to still using drugs.
“This Court feels that the McLendon standard has been met and the custody change is correct.”
Evidence was presented to the trial court ore tenus. The trial court personally observed the parties and was in the best position to observe their demeanor and to judge their credibility. The responsibility of making difficult decisions regarding child custody rests squarely on the shoulders of the trial judge, “who has actually seen and heard the parties and the witnesses [and] is infinitely more qualified to make a decision than an appellate court.” Ex parte D.W.W.,
Applying the ore tenus standard of review, the trial court’s decision to modify custody did not amount to reversible error. See Ex parte Fann,
“At the hearing the mother of the minor child testified that the present custodians let her have overnight visits with the minor child. The mother also testified that she was still using drugs and still had a problem with them. She also testified that she did not want [the maternal grandmother] to have custody of the minor child because she would hold her accountable for using drugs and restrict her visits with the minor child if the mother was using drugs, but the present custodian understood her drug use even though it would make her mad. The Court was greatly disturbed by this, and concerned that the minor child was being exposed to the situation which removed her from her natural mother in the first place. It was clear and convincing evidence from the testimony of all the parties, that the [maternal grandmother] limits the contact between the mother and the older half-sibling but that the present custodians of the minor child [do] not.”
The trial court modified custody, removing the children from the custody of two people who have no blood relation to the children and with whom they had been living for less than two years, and placing them in the custody of their maternal grandmother, who already has custody of the children’s biological half sister as a result of a prior dependency action. Although a different decision could have been reached under these facts, the decision is supported by the record and cannot be disturbed on appeal.
S.L.M. and R.S.M. argue that the sufficiency of the prior custody orders was not properly before the trial court and that, therefore, the trial court was without authority to modify the prior orders. Specifically, S.L.M. and R.S.M. argue that the maternal grandmother could properly attack the prior custody orders of the trial court only by filing a motion under Rule 60(b), Ala. R. Civ. P., and that, because the maternal grandmother was not a party to the actions at the time the initial custody orders were entered, she lacked standing to bring such a motion. However, this argument is misplaced. Unlike an ordinary civil matter, pursuant to
“In any case over which the juvenile court has jurisdiction, the juvenile court shall retain jurisdiction over an individual of any age to enforce or modify any prior orders of the juvenile court unless otherwise provided by law and also shall retain jurisdiction for the enforcement or modification of any prior orders of the juvenile court requiring the payment ■of fines, court costs, restitution, or other money ordered by the juvenile court until paid in full.”
In similar circumstances, this court has viewed postdisposition motions from non-parental family members as motions for a change of custody:
“The noncustodial relatives filed petitions seeking custody of the children, in which they asserted that the children’s best interests would be better served if custody were modified. Once a juvenile court has placed a dependent child into the ‘permanent’ custody of a proper caregiver, the dependency of the child ends and any further change of custody is governed by the standards set forth in Ex parte McLendon,455 So.2d 863 (Ala. 1984).... Thus, the noncustodial relatives were required to meet the McLen-don standard in order to be entitled to amodification of the custody of the children.”
B.C.,
Based on the trial court’s continuing jurisdiction over these matters, the maternal grandmother moved to intervene pursuant to Rule 24(a)(2), Ala. R. Civ. P., and there is no indication in the record that S.L.M. and R.S.M. objected to that motion to intervene. Further, as was the situation in B.C., the maternal grandmother, as a “noncustodial relative[,] filed a petition to intervene and a complaint in intervention in each action, seeking custody of the children.... The juvenile court permitted the noncustodial relativef] to intervene; it also consolidated the actions for trial.” B.C.,
Because S.L.M. and R.S.M. fail to demonstrate that the trial court lacked jurisdiction over the petitions filed by the maternal grandmother . or that it erred in applying the McLendon standard and awarding custody to the maternal grandmother, we affirm the judgments of the trial court.
AFFIRMED.
. For simplicity, although S.L.M. is the sole custodian of S.D.A. and S.L.M. and R.S.M. are joint custodians of R.D.A., I will refer to them as the custodians of both children for purposes of this dissent.
Dissenting Opinion
dissenting.
I must respectfully dissent from the decision to affirm the custody award to S.C. (“the maternal grandmother”). As I stated in my original dissent to the opinion remanding this cause, see S.L.M. v. S.C.,
“[The maternal grandmother] filed dependency petitions regarding the children. In her petitions, she alleged that the children were dependent due to the conduct of their mother, C.G. However, the children’s dependency resulting from the actions of their mother had been resolved by placing them in the custody of [S.L.M. and R.S.M. (‘the custodians’) ]. See S.P. v. E.T.,957 So.2d 1127 , 1131 (Ala.Civ.App.2005) (indicating that ‘final dispositional orders coincide with the end of the child’s dependency, i.e., the child has a proper custodian “and ” is no longer “in need of care or supervision” by persons other than the custodian. See Ala.Code 1975, [former] § 12-15-l(10)n. In other words, under ideal circumstances, the final dispositional order results in a custody award wherein the parent or custodian is able and willing to have the care, custody, and control of the child, free from any intervention or supervision by the state under the dependency statutes.’). Thus, it was incumbent on the maternal grandmother to prove at trial that the children were presently dependent in order to receive custody of the children; that is, the maternal grandmother was required to prove that the children were dependent in the custody of the custodians before the juvenile court could award her custody of the children. See T.B. v. T.H.,30 So.3d 429 , 431 (Ala.Civ.App.2009) (stating that a juvenile court may make a disposition of a child in a dependency proceeding only after finding the child dependent); see also V.W. v. G.W.,990 So.2d 414 , 417 (Ala.Civ.App.2008) (quoting K.B. v. Cleburne Cnty. Dep’t of Human Res.,897 So.2d 379 , 389 (Ala.Civ. App.2004) (Murdock, J., concurring in the result)) (‘ “[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 thatdisposition.” ’)• Furthermore, a child cannot be dependent if he or she has a fit and willing parent or a fit and willing legal custodian (or custodians); in such a situation, the child is not dependent and custody remains with the parent or the legal custodian. J.W. v. T.D., 58 So.3d 782 , 792 (Ala.Civ.App.2010).”
Both Ex parte J.P.,
On Application for Rehearing
APPLICATION OVERRULED.
THOMPSON, P.J., and PITTMAN, J., concur.
MOORE, J., dissents, with writing, which THOMAS, J., joins.
Dissenting Opinion
dissenting.
On original submission, this court, in describing the convoluted procedural history of this case, stated:
“On May 30, 2012, [S.C.,] the maternal grandmother[,] filed a ‘Petition to Intervene and For Custody’ in the action relating to each child. The petitions specifically allege that the children are dependent as to [C.G.,] the mother[,j and the biological father and acknowledged that the children might be in the temporary custody of S.L.M.; however, the petitions do not specifically allege that the children are dependent while in S.L.M.’s custody. The trial court held a hearing on the petitions and heard testimony ore tenus from all parties. No party objected to the proceedings, which were in the nature of a hearing as to the dependency of the children, not a custody-modification hearing.”
S.L.M. v. S.C.,
This court further concluded on original submission that the trial court had failed to comply with Rule 25 of the Alabama Rules of Juvenile Procedure, which relates to the findings a juvenile court must make following an adjudicatory hearing on dependency. See Rule 25(A), Ala. R. Juv. P. This court stated:
“As a threshold matter, the trial court’s August 2012 order does not make the required finding as to whether the children were dependent as of the time of the hearing rather than when the trialcourt made its initial determinations in the actions into which the maternal grandmother petitioned to intervene, and, moreover, the order fails to identify the specific grounds to support a finding of dependency pursuant to § 12-15-102(8) [, Ala.Code 1975].
“Because there had been an explicit prior determination that R.D.A. was dependent and an implicit determination of dependency as to S.D.A., the trial court was required to determine, by clear and convincing evidence, whether, as of the time of the hearing, the children were dependent while in the custody of their respective custodians — i.e., S.L.M. for S.D.A. and S.L.M. and R.S.M. for R.D.A. A finding of dependency must be made separately as' to each child before the trial court may determine whether the maternal grandmother should have custody. The trial court’s August 2012 order is hot sufficient to infer that such determinations of dependency have been made.”
Based on those two conclusions, this court remanded the case for the trial court to make the appropriate dependency findings necessary to sustain its custody disposition, stating:
“Therefore, we remand this cause to the trial court for it to make, based on the existing record, the written findings required by Rule 25(A), Ala. R. Juv. P., as to whether each child is dependent as to her custodian or custodians and, if so, identifying the grounds supporting the findings of dependency. If the trial court finds that the child was not dependent as to her custodian or custodians, the petition should be dismissed as to that child.”
“ ‘It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered.... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate....’”
Ex parte Alabama Power Co.,
On remand, the trial court determined (1) that the maternal grandmother had not filed dependency petitions, but, rather, had filed custody-modification petitions; (2) that it had treated and tried the case solely as a custody-modification proceeding; (3) that, because the maternal grandmother had filed only custody-modification petitions, a finding of dependency was not
Rather than correct the trial court, this court, in its opinion on return to remand, see S.L.M. v. S.C.,
Although the trial court has not yet complied with our mandate, I find no need to remand the case again. I agree with Judge Thomas’s dissent on original submission that the record contains no evidence, much less clear and convincing evidence, indicating that the children are dependent in the care of S.L.M. and R.S.M.
THOMAS, J., concurs.
.The record indicates that the younger child was born premature with less than a 5% chance of surviving, but S.L.M. attended to her throughout her infancy and has continued, along with R.S.M., to assure that her medical needs are met. Furthermore, I conclude that the record does not support a finding that S.L.M. or R.S.M. has ever allowed the mother to be around the children while using drugs, as the trial court implied in its order on remand.
. The maternal grandmother testified that she had never seen the children. The record also disclosed that the older sister of the children, who resides with maternal grandmother, had never met the children, although she had seen photographs of them.
. The children have lived in the Gadsden area their entire lives. . The maternal grandmother lives in Waco, Kentucky.