Ex Parte D.B. and K.S.
K.S.B. In re: D.B. and K.S.
Juvenile Court, JU-10-321.03; Court of Civil Appeals, 2150850
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
and K.S. petitioned this Court for a writ of certiorari
seeking review of the judgment of the Court of Civil Appeals
affirming, without an opinion, a custody-modification
judgment awarding K.S.B. ("the mother") custody of
her daughter ("the child"). D.B. v. K.S.B.
(No. 2150850, February 3, 2017), ___ So.3d ___ (Ala. Civ.
App. 2017) (table). We granted the petition, and we reverse
the judgment of the Court of Civil Appeals and remand the
cause for further proceedings.
and Procedural History
child was born in April 2007. D.B., the child's maternal
grandfather ("the grandfather"), and K.S., the
child's maternal stepgrandmother ("the
stepgrandmother") (the grandfather and stepgrandmother
are hereinafter referred to collectively as "the
grandparents"), petitioned for custody of the child
after the mother telephoned the grandfather in May 2010 and
asked him to come get the child because she was "being
mean" to the child. The mother did not appear at the
hearing on the grandparents' custody petition, and the
juvenile court awarded custody of the child to the
grandparents in August 2010.
February 29, 2016, the mother filed a petition to modify
custody. Based on the juvenile court's August 2010
custody judgment in favor of the grandparents, it is
undisputed that, in order to succeed in her request to modify
custody, the mother was required to meet the well settled
custody-modification standard set forth in Ex parte
McLendon, 455 So.2d 863 (Ala. 1984):
"'Where a parent has transferred to another [whether
it be a non-parent or the other parent], the custody of h[er]
infant child by fair agreement, which has been acted upon by
such other person to the manifest interest and welfare of the
child, the parent will not be permitted to reclaim the
custody of the child, unless [s]he can show that a change of
the custody will materially promote h[er] child's
"Greene v. Greene, 249 Ala. 155, 157, 30 So.2d
444, 445 (1947), quoting the Supreme Court of Virginia,
Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685,
687, 40 L.R.A. 623 (1898).
"'[This] is a rule of repose, allowing the child,
whose welfare is paramount, the valuable benefit of stability
and the right to put down into its environment those roots
necessary for the child's healthy growth into adolescence
and adulthood. The doctrine requires that the party seeking
modification prove to the court's satisfaction that
material changes affecting the child's welfare since the
most recent decree demonstrate that custody should be
disturbed to promote the child's best interests. The
positive good brought about by the modification must more
than offset the inherently disruptive effect caused by
uprooting the child. Frequent disruptions are to be
"Wood v. Wood, 333 So.2d 826, 828 (Ala. Civ.
"It is not enough that the parent show that she has
remarried, reformed her lifestyle, and improved her financial
position. Carter v. Harbin, 279 Ala. 237, 184 So.2d
145 (1966); Abel v. Hadder, 404 So.2d 64 (Ala. Civ.
App. 1981). The parent seeking the custody change must show
not only that she is fit, but also that the change of custody
'materially promotes' the child's best interest
455 So.2d at 865-66.
brief record from the hearing on the mother's petition to
modify custody contains the following pertinent evidence,
presented ore tenus. At the time of the hearing, the child
was nine years old and had been living with the grandparents
since she was three years old. In the six years the child had
been in the custody of the grandparents, the mother had begun
regularly visiting the child only four months before the
hearing. According to the mother, during those four months,
she and the child had developed "a pretty strong
mother presented evidence indicating that she had a history
of mental illness and drug abuse, which led to her being
unable to care for the child in 2010. After the mother asked
the grandparents to care for the child, she was imprisoned
for two years; she was released in 2012. The mother testified
that she had been misdiagnosed as bipolar for several years
but that she was now able to control her mental condition --
borderline personality disorder -- with medication. The
mother further testified that she had been drug-free, other
than medication for her mental condition, for six years
preceding the hearing. In December 2014, the mother married
Y.B., an Army veteran. Y.B. had been diagnosed with
post-traumatic stress disorder, and, according to the mother,
Y.B. receives treatment for that condition approximately once
a year. The mother stated that Y.B. is supposed to seek
treatment more often but they had "kind of slacked up on
mother and Y.B. live in a house Y.B. owns in Spanish Fort.
The mother testified that she has two children in addition to
the child and that both of those children live with her in
the home she shares with Y.B. Her son, who was 11 years old
at the time of the hearing, is autistic and had lived with
the mother for only one year before the hearing. The mother
testified that her son was born in 2005, that she was
involved in drugs at that time, and that she decided it was
in her son's best interest for him to live with her
mother, the son's maternal grandmother. The maternal
grandmother and her husband adopted the son in 2007, but,
beginning approximately one year before the hearing in the
present case, the maternal grandmother and her husband
allowed the son to begin living with the mother. The mother
testified that the child and her son "have a wonderful
relationship, " that they are "elated" when
they are together, and that "the love between ... them
is very strong." The mother also has a six-month-old
daughter with Y.B.
maternal grandmother testified that the mother had turned her
life around after she was released from prison and that she
had married a wonderful man, so she decided to let the son
live with the mother and her husband on a trial basis.
According to the maternal grandmother, that has worked out
very well, and she thinks the mother would be able to care
for another child in her home.
asked why she believed it was in the best interest of the
child for her to be ...