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D.W. v. M.M.

Alabama Court of Civil Appeals

September 21, 2018

D.W.
v.
M.M. D.W.
v.
M.M. D.W.
v.
M.M.

          Appeal from Montgomery Juvenile Court JU-15-546.01, JU-15-546.03, JU-15-546.04

          MOORE, JUDGE

         D.W., the maternal great-aunt of W.T.D. ("the child"), appeals from a judgment entered by the Montgomery Juvenile Court ("the juvenile court") in several related actions concerning the child to the extent that it awarded custody of the child to M.M., the child's biological father. We reverse the juvenile court's judgment and remand the cases for the juvenile court to enter a new custody award.

         Procedural History

         On August 13, 2015, D.W. ("the maternal great-aunt") filed a dependency petition seeking custody of the child, whose date of birth is April 25, 2009; that petition was assigned case number JU-15-546.01 ("the .01 action"). She alleged that the child's mother, C.W. ("the mother"), had a history of abusing illegal substances and that, since February 20, 2015, the child had been living with the maternal great-aunt pursuant to a safety plan entered into with the Montgomery County Department of Human Resources ("DHR"). The maternal great-aunt listed A.D.G., the child's stepfather, as being the father of the child.

         After a hearing, at which it was made known to the juvenile court that M.M. is the biological father of the child, the juvenile court entered a judgment in the .01 action, on March 3, 2016, finding the child dependent, awarding DHR legal custody of the child, awarding the mother unsupervised overnight visitation as mutually agreed upon by the parties, setting the case for a dispositional hearing, and ordering the maternal great-aunt to provide current information regarding the location of M.M. ("the father").

         On May 19, 2016, the mother filed a petition requesting that the child be returned to her custody; that petition was assigned case number JU-15-546.02 ("the .02 action"). On May 23, 2016, the mother's attorney notified the juvenile court that the mother had died. The juvenile court dismissed the mother's petition in the .02 action on May 25, 2016.

         On June 24, 2016, DHR filed a motion requesting that the juvenile court correct a scrivener's error in the March 3, 2016, judgment entered in the .01 action regarding the legal custody of the child. On that same date, the juvenile court entered, in the .01 action, an amended judgment that, among other things, awarded the maternal great-aunt legal custody of the child and ordered DHR to provide protective services. The juvenile court also noted that the .01 action was set for a dispositional hearing and again ordered the maternal great-aunt to provide information regarding the location of the father.

         On July 25, 2016, the father filed a dependency petition and requested custody of the child; that petition was assigned case number JU-15-546.03 ("the .03 action"). On November 2, 2016, the father filed, in the .01 action, a motion alleging that his paternity of the child had never been established and requesting that the juvenile court establish his paternity of the child. On November 3, 2016, the juvenile court ordered, in the .01 action, a "DNA/Genetic Screening." After a hearing on April 28, 2017, in the .01 action and the .03 action, the juvenile court entered, in the .01 action, an order awarding the father supervised visits and telephone contact with the child.

         At a hearing held on July 6, 2017, in the .01 action and the .03 action, the paternity results were presented to the juvenile court; those results indicated that there was a 99.9% probability that the father was the child's biological father. The father also presented to the juvenile court a judgment entered on November 10, 2010, by the 126th Judicial District Court of Travis County, Texas ("the Texas court"); in that judgment, the Texas Court, among other things, found the father to be the child's biological father, appointed the father and the mother as "Joint Managing Conservators of the child," awarded the mother the right to determine the child's primary residence, ordered the father to pay prospective and retroactive child support, and awarded the father visitation with the child. The father represented that, unknown to him, his mother had been in possession of the judgment of the Texas court and that he and his mother had discovered that judgment only when he returned to Texas after the April 28, 2017, hearing. Also at the July 6, 2017, hearing, the child's guardian ad litem recommended that the father be awarded sole physical custody of the child. In addition, the maternal great-aunt's attorney submitted that the maternal great-aunt would agree to the father's exercising visitation "for a few days" if the child wanted to visit with the father and the father submitted to and passed a drug test. The father declined to submit to a drug test.

         The juvenile court thereafter entered an order on July 21, 2017, in the .01 action and the .03 action, directing the parties to maintain the status quo pending the juvenile court's contacting the Texas court regarding jurisdiction. On October 3, 2017, the Texas court entered an order declining to exercise jurisdiction over the custody of the child.

         On September 28, 2017, A.D.G. ("the stepfather") filed a dependency petition requesting that he and the maternal great-aunt be awarded joint custody of the child; the stepfather's petition was assigned case number JU-15-546.04 ("the .04 action").

         The final dispositional hearing on all the dependency petitions took place on October 22, 2017. Thereafter, on November 6, 2017, the guardian ad litem submitted a report stating, among other things:

"The [guardian ad litem] has significant concern about the [f]ather's long-term history and current evidence of drug use. The [guardian ad litem] has further concerns that the ... [f]ather spent more than one-third of the past 18 years incarcerated, coupled with the fact that he continues to engage in the use of illegal drugs. Although certain states may have legalized marijuana, the ... [f]ather does not live in any of these states. Should he be arrested for ...

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