Lee County Department of Human Resources
from Lee Juvenile Court (JU-17-373.01)
Jr. ("the father"), and J.M. ("the
mother") are the parents of a son, S.G.D. ("the
child"). The Lee County Department of Human Resources
("DHR") commenced in the Lee Juvenile Court
("the juvenile court") a dependency proceeding that
was assigned case no. JU-17-373.01 ("the dependency
action"). The father appeals the judgment entered in the
dependency action determining that the child is dependent as
to the father and awarding the child's custody to the
record on appeal reveals the following. The mother and the
father are the unmarried parents of the child, who was born
in 2011. At some point the parents' romantic relationship
changed, and the record in this appeal indicates that the
mother initiated a paternity and child-support action and the
father initiated a paternity action in the Lee Circuit Court
"Child Support Division." Apparently those actions
were consolidated and assigned case no. CS-13-900004
("the child-support action"). The record in
this appeal does not contain orders entered in the
child-support action; however, it contains a copy of the
parties' settlement agreement in which they stipulated to
the father's paternity of the child and requested an
order awarding them joint custody of the child. It is
undisputed that the parties shared joint custody of the
2017, DHR received a report that the father had poured hot
water on the child to punish him, and, during DHR's
investigation, the child disclosed to DHR that the father had
touched the child's penis and had made him feel
uncomfortable. DHR had also learned that the father was
"indicated" for physical abuse and bizarre
discipline of his four older children from another
relationship. On August 1, 2017, the mother filed a
complaint a modification of the custody judgment entered in
the child-support action. On August 14, 2017, DHR initiated the
dependency action, alleging that the child was dependent as
to the father. On August 29, 2017, the mother filed in
the juvenile court a complaint seeking the entry of a
protection-from-abuse ("PFA") order against the
father on behalf of herself and the child, which was assigned
case no. CV-17-163 ("the PFA action"). The record
contains an order entered in the PFA action, awarding the
mother temporary custody of the child and providing that the
child could not visit the father. See §
12-15-138, Ala. Code 1975 ("The juvenile court, at any
time after a dependency petition has been filed, or on an
emergency basis, may enter an order of protection or
restraint to protect the health or safety of a child subject
to the proceeding."). After a hearing in the dependency
action, the juvenile court entered a judgment adjudicating
the child dependent as to the father and awarding sole legal
and physical custody of the child to the mother.
first consider whether the juvenile court properly exercised
subject-matter jurisdiction over the dependency action.
"We review the legal question of subject-matter
jurisdiction de novo." T.K. v. M.G.,
82 So.3d 1, 3 (Ala. Civ. App. 2011)(citing Hill v.
Hill, 89 So.3d 116, 117-18 (Ala. Civ. App. 2010)).
Section 12-15-114(a), Ala. Code 1975, provides, in pertinent
"(a) A juvenile court shall exercise exclusive original
jurisdiction of juvenile court proceedings in which a child
is alleged to have committed a delinquent act, to be
dependent, or to be in need of supervision. A dependency
action shall not include a custody dispute between
pleading that initiated the dependency action was not filed
by the mother or the father as a custody dispute; rather, it
was filed by DHR, alleging that the child is dependent as to
the father. "Once the dependency jurisdiction of a
juvenile court has been properly invoked, the juvenile court
has an imperative statutory duty to conduct an evidentiary
hearing to determine the dependency of the child."
K.C.G. v. S.J.R., 46 So.3d 499, 501 (Ala. Civ. App.
2010). The juvenile court properly exercised its dependency
jurisdiction. Furthermore, § 12-15-138, provides that a
juvenile court has the authority to protect the health and
safety of a child in emergency circumstances, such as those
alleged by DHR in this case.
we consider whether the child is a dependent child. DHR asked
the juvenile court to resolve a question upon which neither
this court nor our supreme court has offered guidance until
today: whether a child can be a dependent child if the child
has a fit custodial parent.
"Our standard of review of dependency determinations is
"'A finding of dependency must be supported by clear
and convincing evidence. § 12-15-65(f)[, Ala. Code
1975]; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.
Civ. App. 1999). However, matters of dependency are within
the sound discretion of the trial court, and a trial
court's ruling on a dependency action in which evidence
is presented ore tenus will not be reversed absent a showing
that the ruling was plainly and palpably wrong. R.G. v.
Calhoun County Dep't of Human Res., 716 So.2d 219
(Ala. Civ. App. 1998); G.C. v. G.D., 712 So.2d 1091
(Ala. Civ. App. 1997); and J.M. v. State Dep't of
Human Res., 686 So.2d 1253 (Ala. Civ. App. 1996).'
"J.S.M. v. P.J., 902 So.2d 89, 95 (Ala. Civ.
App. 2004). This court has stated that clear and convincing
"'"[e]vidence that, when weighed against
evidence in opposition, will produce in the mind of the trier
of fact a firm conviction as to each essential element of the
claim and a high probability as to the correctness of the
conclusion. Proof by clear and convincing evidence requires a
level of proof greater than a preponderance of the evidence
or the substantial weight of the evidence, but less than
beyond a reasonable doubt."
"'§ 6-11-20[(b)](4), Ala. Code 1975.'
v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App.
2002)." L.A.C. v. T.S.C., 8 So.3d 322, 326-27
(Ala. Civ. App. 2008).
"dependent child" is defined in §
"[a] child who has been adjudicated dependent by a
juvenile court and is in need of care or supervision and
meets any of ...