Appeal from Montgomery Juvenile Court. (JU-93-1272 and JU-93-1273). John Davis, TRIAL JUDGE.
Released for Publication January 27, 1995.
Yates, Judge. Robertson, P. J., concurs. Thigpen, J., concurs in part and Dissents in part.
The opinion of the court was delivered by: Yates
On December 14, 1993, M. B., the maternal grandmother, petitioned the juvenile court for temporary custody of two minor children of her daughter, R. H. M. The children were born March 6, 1992, and January 20, 1993. She alleged that R. H. M. did not provide appropriate hygiene or medical care for the children and that the father had "demonstrated no desire or inclination to provide for the needs of [the children] in the absence of the mother's ability to do so."
On February 7, 1994, the court ordered the Department of Human Resources ("DHR") to investigate M. B.'s home and the allegations contained in her petition, and to then submit a written report of its findings. DHR visited the homes of M. B. and of R. H. M., interviewed witnesses, and filed its report with the court on February 17, 1994.
On March 3, 1994, R. H. M. filed a motion asking the court to recognize her parental rights to her children, claiming that the grandmother had physical custody of the children and that she refused to relinquish control of them to her. She asked that the court order the grandmother to relinquish custody to her "until such time as there has been a hearing to determine custody."
After a hearing on March 30, 1994, the court ordered:
"1. That the temporary legal custody of [the two children] is awarded to their maternal grandmother [M. B.].
"2. That the mother [R. H. M.] is awarded liberal rights of visitation with the children but said visitation shall be only with the prior consent of the children's grandmother and the mother shall not remove the children from the jurisdiction of the Court.
"3. [E. J. M.] is adjudicated the biological and legal father of [the children]. As [he] and the children's mother have recently married, the father shall exercise visitation with the children at the same time as the mother."
The mother appeals, contending that the trial court abused its discretion in granting temporary custody to the grandmother, arguing that it relied upon a DHR report "that took every statement given by [M. B.] at face value, without verification, as valid and true."
We note at the outset that parental rights were not terminated and that the mother and father were awarded "liberal rights of visitation."
R. H. M. and M. B. both testified at the hearing, as did the children's father and other witnesses. Also presented was the written report of Ann Floyd, a DHR social worker. The report revealed that R. H. M. has another child (not involved in this action) living with M. B. and that M. B. has reared that child since his birth four years ago. Additionally, the report revealed that R. H. M. admitted that her husband "beat her 7 or 8 times very badly and [she] remembers going to the hospital." As to the home of R. H. M., the report noted, "No baby beds, play pen, or any other baby furniture was observed in the home. No toys were observed or any baby ...