R.P. And D.P. S.B.H.
R.P. and D.P.
from Etowah Juvenile Court (JU-17-6.01), (JU-17-7.01)
THOMPSON, PRESIDING JUDGE.
("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
January 5, 2017, the maternal grandparents filed in the
juvenile court a petition for "emergency custody"
of the children. 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.
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.
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.
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
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.
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.
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, 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.
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.
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 ...