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Ex parte D.B.

Supreme Court of Alabama

September 22, 2017

Ex Parte D.B. and K.S.
v.
K.S.B. In re: D.B. and K.S.

         Baldwin Juvenile Court, JU-10-321.03; Court of Civil Appeals, 2150850

          PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS

          BRYAN, Justice.

         D.B. 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.

         Facts and Procedural History

         The 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.

         On 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 welfare.'
"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).
"Furthermore,
"'[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 condemned.'

"Wood v. Wood, 333 So.2d 826, 828 (Ala. Civ. App. 1976).

"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 and welfare."

455 So.2d at 865-66.

         The 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 bond."

         The 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 it."

         The 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.

         The 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.

         When asked why she believed it was in the best interest of the child for her to be ...


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