Shelby County Department of Human Resources L.M.
Shelby County Department of Human Resources
from Shelby Juvenile Court (JU-13-548.03), (JU-14-274.02)
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.
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.
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. The juvenile court concluded that
L.M. is the children's cousin; 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.
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). 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.
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
"[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."
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." 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 §
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 ...