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S.B.H. v. R.P.

Alabama Court of Civil Appeals

April 20, 2018

R.P. And D.P. S.B.H.
R.P. and D.P.

          Appeal from Etowah Juvenile Court (JU-17-6.01), (JU-17-7.01)


         S.B.H. ("the father") appeals from a judgment of the Etowah Juvenile Court ("the juvenile court"), which was entered in both of the underlying actions, finding his two minor children ("the children") dependent and awarding custody of the children to R.P. and D.P ("the maternal grandparents").

         On January 5, 2017, the maternal grandparents filed in the juvenile court a petition for "emergency custody" of the children.[1] In the petition, the maternal grandparents alleged that the father and J.P. ("the mother"), who are divorced, were both unfit and that the children were dependent. Specifically, they alleged that the mother and the father had "psychological conditions that have compromised their ability to care for the children." As to the father, the maternal grandparents stated that they believed he lived near Nashville, Tennessee, but that "his exact whereabouts and address [were] unknown to" them at the time the petition was filed. Because the mother did not appeal from the judgment, in this opinion we will discuss the relevant information and evidence pertaining only to the father.

         The same day the petition for emergency custody was filed, the juvenile court entered an ex parte order awarding the maternal grandparents "immediate temporary care, custody, and control" of the children. The father was awarded visitation at times to which the maternal grandparents and he could agree. A guardian ad litem was appointed to represent the children. A 72-hour hearing was never held or scheduled in these matters.

         On January 20, 2017, the father filed an answer and a counterpetition for custody and visitation. He also sought an immediate hearing. The juvenile court did not hold an initial hearing in these cases until February 17, 2017. On February 24, 2017, the father filed a motion for visitation. In his motion, the father noted that, at the close of the February 17 hearing, the juvenile court had "indicated that it did not want to allow unsupervised weekend visitation without hearing more evidence from the father" but had awarded the father visitation supervised by the children's paternal grandmother and coordinated by the children's guardian ad litem.

         The trial of these matters was held on March 10, 2017, and May 22, 2017. On October 13, 2017, the juvenile court entered its judgment finding the father and the mother to be unfit and unsuitable to have custody of the children and determining that it was in the children's best interest to remain in the maternal grandparents' custody. The mother and the father were awarded supervised visitation. The father's visitation was to continue to be supervised by the paternal grandmother.

         The father argues that the juvenile court's finding that he is unfit and its determination that, as to him, the children are dependent are not supported by the evidence.

"'"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. v. Shelby Cty. Dep't of Human Res., 234 So.3d 532, 534-35 (Ala. Civ. App. 2017).

"This court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing. See Ex parte T.V., 971 So.2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id. We review the legal conclusions to be drawn from the evidence without a presumption of correctness. J.W. v. C.B., 68 So.3d 878, 879 (Ala. Civ. App. 2011)."

K.S.B. v. M.C.B., 219 So.3d 650, 653 (Ala. Civ. App. 2016).

         The evidence in these cases shows the following. After an eight-year marriage, the mother and the father were divorced on June 25, 2013, by a judgment entered in the Etowah Circuit Court. The divorce judgment incorporated an agreement reached between the mother and the father pursuant to which they would have "joint legal care, control, and custody of the minor children, with the [mother] being designated as the primary custodial parent, " subject to the father's visitation. The agreement also stipulated that the father would be allowed to make the medical decisions for the children.

         The children, who were 11 and 8 years of age at the time the final judgment in these matters was entered, both have significant health issues. The older child has been diagnosed with attention-deficit/hyperactivity disorder ("ADHD"), epilepsy with seizures, a conduct disorder, and a learning disability. The younger child has been diagnosed with ADHD, schizophrenia, and encopresis, sometimes referred to as fecal incontinence, which occurs in children who have already learned to use a toilet.

         After the mother and the father divorced, the father continued to live with the mother and the children in a mobile home next door to the home of the maternal grandparents. The mother testified that the father had stayed in the home "for the benefit of the kids." The mother said that the family had lived in that location since 2009. At trial, the mother explained that the family had moved next door to the maternal grandparents' home when the business where she worked closed and they could no longer afford the house where they had been living in Attalla.

         The evidence indicates that both the mother and the father suffer from mental illness. The mother has been diagnosed with bipolar disorder and has displayed symptoms of that illness over a number of years. That illness prevents her from working, and she receives disability benefits. The father testified that he has suffered from anxiety issues "off and on" for much of his adult life; however, until April 2014, the anxiety was not debilitating. In April 2014, the father said, he began hallucinating--hearing people under the floors and believing people in the woods were trying to kill him. He acknowledged that he had fired a gun into the floor and into the woods. He also had difficulty sleeping, began missing work, and was "zoning out, " apparently during seizures. The father went to the hospital and ...

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