Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

L.M. v. Shelby County Department of Human Resources

Alabama Court of Civil Appeals

January 20, 2017

L.M.
v.
Shelby County Department of Human Resources L.M.
v.
Shelby County Department of Human Resources

         Appeal from Shelby Juvenile Court (JU-13-548.03), (JU-14-274.02)

          THOMAS, Judge.

         R.G. gave birth to A.C. ("the daughter") in December 2011. The daughter tested positive for cocaine at birth. K.R., R.G's aunt, adopted the daughter at that time. R.G. gave birth to C.G. ("the son") in September 2013, and, shortly afterward, the Shelby County Department of Human Resources ("DHR") received a report alleging that R.G. had been abusing drugs and neglecting the son, and, in January 2014, it received a report alleging that K.R. had been hospitalized after overdosing on Valium and that she was unable to care for the daughter.

         The Shelby Juvenile Court adjudicated the daughter and the son ("the children") dependent and awarded their custody to DHR (case number JU-13-548.01 and case number JU-14-274.01). DHR first placed the children in foster care, and, later, it placed them with K.R.; however K.R. and C.M., K.R.'s boyfriend, absconded with the children and concealed their whereabouts from DHR from March 2014 until December 2015. In the meantime, L.M., who is the appellee and the adult daughter of C.M., filed in the juvenile court petitions (case number JU-13-548.03 and case number JU-14-274.02), seeking custody of the children. L.M., as explained in more detail infra, is a cousin of both R.G and K.R. In December 2015 K.R. died from a drug overdose, the location of the children was revealed to DHR, the daughter disclosed that she had been sexually abused, and the children were temporarily placed in the "Kirksey home" before being returned to foster care.

         A total of nine actions were filed in the juvenile court. Five actions were filed by various parties regarding the son: case number JU-13-548.01, case number JU-13-548.02 (filed by K.R., who is deceased), case number JU-13-548.03, case number JU-13-548.04, and case number JU-13-548.05 (a termination-of-parental-rights action filed by DHR). Four actions were filed by various parties regarding the daughter: case number JU-14-274.01, case number JU-14-274.02, case number JU-14-274.03, and case number JU-14-274.04 (a termination-of-parental-rights action filed by DHR). The juvenile court consolidated the actions, and, on April 20, 2016, it entered one judgment in seven of the actions, but not in the termination-of-parental-rights actions. Ultimately, the judgment was certified as final, pursuant to Rule 54(b), Ala. R. Civ. P.[1] The juvenile court concluded that L.M. is the children's cousin;[2] however, it denied L.M.'s custody petitions, noting that L.M. had had limited contact with the children. On May 3, 2016, L.M. filed timely notices of appeal. This court consolidated appeal number 2150658, regarding the son, and appeal number 2150659, regarding the daughter.

         L.M. argues that she is a relative entitled to priority over a nonrelative in considering an award of custody of the children, and she argues that DHR "deliberately sabotaged" her ability to establish a relationship with the children. Thus, because she contends on appeal only that the juvenile court erred by denying her petitions for custody of the children, our review of these appeals is limited to issues arising from case number JU-13-548.03 (L.M.'s petition for custody regarding the son) and case number JU-14-274.02 (L.M.'s petition for custody regarding the daughter).[3] See Rogers & Willard, Inc. v. Harwood, 999 So.2d 912, 923 (Ala. Civ. App. 2007) ("This court will not consider on appeal issues that are not properly presented and argued in brief.").

"'In matters concerning child custody and dependency, the trial court's judgment is presumed correct on appeal and will not be reversed unless plainly and palpably wrong.' Ex parte T.L.L., 597 So.2d 1363, 1364 (Ala. Civ. App. 1992); see also Ex parte R.E.C., 899 So.2d 272, 279 (Ala. 2004). Additionally, in Ex parte Anonymous, 803 So.2d 542 (Ala. 2001), the Alabama Supreme Court stated:
"'The ore tenus rule provides that a trial court's findings of fact based on oral testimony "have the effect of a jury's verdict, " and that "[a] judgment, grounded on such findings, is accorded, on appeal, a presumption of correctness which will not be disturbed unless plainly erroneous or manifestly unjust." Noland Co. v. Southern Dev. Co., 445 So.2d 266, 268 (Ala. 1984). "The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses." Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986).'
"803 So.2d at 546."

J.W. v. C.H., 963 So.2d 114, 119 (Ala. Civ. App. 2007).

         L.M. argues that, because she is "the only relative resource available, " the juvenile court erred by declining to award custody of the children to her. The goals of the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala. Code 1975, include "preserv[ing] and strengthen[ing] the family of the child whenever possible" and providing "a preference at all times for the preservation of the family." § 12-15-101(b)(1) and (8), Ala. Code 1975. Section 12-15-314(a)(3)c., Ala. Code 1975, provides, in pertinent part, that a willing, fit, and able relative shall have priority for placement or custody over a nonrelative unless the juvenile court finds it not in the best interests of the child. Section 12-15-301(13) defines a "relative" as

"[a]n individual who is legally related to the child by blood, marriage, or adoption within the fourth degree of kinship, including only a brother, sister, uncle, aunt, first cousin, grandparent, great grandparent, great-aunt, great-uncle, great great grandparent, niece, nephew, grandniece, grandnephew, or a stepparent."[4]

         L.M. does not contend that the children are her first cousins. L.M. testified that K.R. and a person identified as "D." are her first cousins. (D. is R.G.'s mother.) Thus, the juvenile court correctly determined that the children are not L.M.'s first cousins; however, it incorrectly determined that the children are related to L.M. "to the 4th degree of blood relations."[5] Although the finding that the children were within the fourth degree of kinship to L.M. is error, DHR, the prevailing party, could not have properly filed a notice of appeal regarding that error. "[W]here a judgment is wholly in a party's favor and there is nothing prejudicial in the judgment no appeal lies to the prevailing party." Personnel Bd. of Jefferson Cty. v. Bailey, 475 So.2d 863, 865-66 (Ala. Civ. App. 1985). The juvenile court's error did not prejudice L.M. because its finding that she was related to the children "to the 4th degree of blood relations" was favorable to her position. We cannot reverse the juvenile court's judgment based on its erroneous conclusion that L.M. was a "relative" of the children, pursuant to § 12-15-301(13).

         Next, L.M. argues that the juvenile court erred by concluding that she was not a suitable custodian because, she says, DHR failed to initiate a proper or adequate investigation regarding her ability to meet the needs of the children. L.M. asserts that DHR actively sabotaged her efforts to build a relationship with the children by, she says, denying her supervised visitation, which had been ordered by the juvenile court, in order to claim that she was a stranger to the children. Indeed, in a December 12, 2015, shelter-care order, the juvenile court had ordered DHR to provide supervised visitation between ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.