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S.S. v. R.D.

Alabama Court of Civil Appeals

February 9, 2018

S.S.
v.
R.D.

         Appeals from Mobile Juvenile Court (JU-12-733.01 and JU-12-733.02)

          THOMAS, Judge.

         S.S. ("the mother") appeals decisions of the Mobile Juvenile Court ("the juvenile court") finding R.D., Jr. ("the child"), to be dependent and awarding his custody to R.D. ("the alleged paternal grandmother").

         Background

         The child was born on November 4, 2011. At that time, the mother was married to L.G. ("the presumed father"), whose paternity was therefore presumed by law pursuant to § 26-17-204(a)(1), Ala. Code 1975. The record indicates that the presumed father has persisted in his paternity of the child, but it also contains assertions that the child's biological father is the alleged paternal grandmother's son, R.D., Sr. ("the alleged father"), for whom the child is named.

         On May 7, 2012, the alleged paternal grandmother filed a sworn pro se petition in the juvenile court, in which she averred that the child was dependent and requested an award of his custody ("the dependency action"); that action was assigned case no. JU-12-733.01. The record contains an affidavit of substantial hardship that appears to have been completed by the alleged paternal grandmother in which she requested that the juvenile court appoint an attorney to represent her. Rather than doing so, the juvenile court appears only to have waived the docket fee.[1]

         The record also contains a written order of the juvenile court dated May 11, 2012, awarding the alleged paternal grandmother pendente lite custody of the child; the case-action-summary sheet of the dependency action indicates that the order was entered on June 18, 2012. The presumed father later filed a motion to dismiss the dependency action, explaining that he persisted in his paternity of the child. The juvenile court entered an order, which denied the presumed father's motion but also specifically acknowledged the presumption of his paternity, thereby advising "all parties ... so that proper pleadings may be filed and appropriate burden of proof observed."

         On October 15, 2014, the mother filed a sworn pro se petition in the juvenile court requesting an award of visitation with the child, which action was given a separate case designator from the dependency action ("the mother's action"); that action was assigned case no. JU-12-733.02. The record contains several orders with captions that collectively reference the dependency action, the mother's action, and several other actions regarding some of the mother's other children. Although, as is mentioned later in this opinion, the juvenile court appears to have tried all the actions on the same day and the issues raised by the dependency action and the mother's action in the same hearing, the record contains no order consolidating any of the actions, and therefore they appear to have remained separate. See Committee Comments on 1973 Adoption of Rule 42, Ala. R. Civ. P. (noting that "Rule 42(a) speaks both of joint hearings or trials and of consolidation" (emphasis added)). The actions regarding the mother's other children are not relevant to this appeal.

         On February 3, 2015, the alleged father filed a motion in the dependency action asking the juvenile court to order that genetic testing be conducted to establish his paternity of the child. The exact manner in which the alleged father became a party to the dependency action is not disclosed in the record, but it does not appear that either the mother or the alleged paternal grandmother objected to his inclusion as a party. That same day, the juvenile court entered an order stating that the alleged father's motion would be considered at trial. On February 5, 2015, however, the juvenile court entered an order in both the dependency action and the mother's action requiring that genetic testing be done to determine the alleged father's paternity of the child and specifying, in relevant part, the mother's pendente lite visitation with the child.

         On May 28, 2015, the mother filed a motion in the dependency action asking the juvenile court to hold the alleged paternal grandmother in contempt for, she said, failing to comply with the pendente lite visitation provisions of its February 5, 2015, order. On July 1, 2015, the juvenile court entered an order in the dependency action stating that the mother's contempt motion would "be addressed at the trial." The mother later filed in the dependency action a motion asking the juvenile court to order that the alleged father be tested for illegal drug use, which the juvenile court denied.

         On August 18, 2015, the juvenile court conducted a trial at which, among other witnesses, the mother, the alleged paternal grandmother, the presumed father, and the alleged father testified; each of them, except the alleged paternal grandmother, was represented by counsel. At the beginning of the trial, the mother's attorney orally clarified that the mother was actually seeking an award of the child's custody, as opposed to only visitation with the child. The alleged paternal grandmother did not object to the mother's request. The mother's request for custody of the child was therefore tried by the implied consent of the parties. See Rule 15(b), Ala. R. Civ. P.; Edwards v. Edwards, 79 So.3d 629, 632-33 (Ala. Civ. App. 2010).

         Also at the beginning of the trial, the alleged father's attorney explained that, due to a delay in communication, the genetic testing that had been ordered by the juvenile court to establish the alleged father's paternity of the child had not yet been conducted. In response, the presumed father's attorney explained that the presumed father still persisted in his paternity of the child.

The juvenile-court judge then orally stated:
"I'll dismiss [the alleged father] as a party. He'll have to wait outside as a witness, and that's -- that ends your lawyer, okay? He can always file a motion to reconsider, and we can do something else if somebody can find some law that changes what[, ] to my understanding[, ] is still the Alabama law is that[, ] if you're married, then the father -- the husband is the presumed father, and he trumps all other rights. So I'll today dismiss as to [the alleged father]."

         At the close of the trial, the juvenile-court judge stated: "Okay. I find the child to be dependent. Custody to the [alleged paternal grandmother]." The juvenile court also stated: "Based on the testimony of the mother and [the evidence that the presumed father] is the legal father, I can partially impute minimum wage to both of them so I'm going to order both -- both to pay $246 a month [as] child support."

         The juvenile court then explained that it would reserve ruling on the issue of the mother's visitation with the child until after considering the evidence presented in the actions regarding the mother's other children. After a brief recess, however, the juvenile court indicated that an agreement had been reached regarding the mother's visitation with the child. The child's guardian ad litem then orally set out a visitation schedule. The alleged paternal grandmother was not present during that portion of ...


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