C.D.F. and C.F.
from Cullman Juvenile Court (JU-12-481.03)
THOMPSON, PRESIDING JUDGE.
6, 2017, C.D.F. ("the paternal grandfather") and
his wife, C.F. (hereinafter referred to collectively as
"the petitioners"), filed in the Cullman Juvenile
Court ("the juvenile court") a petition seeking an
award of custody of B.N.F. ("the child"). The
record demonstrates that the child's parents are unable
to care for the child. A June 16, 2014, judgment of the
juvenile court awarded custody of the child to L.M.F.
("the paternal grandmother"). That June 16, 2014,
judgment specified that it was based upon an agreement of the
parties to that action, i.e., the paternal grandmother and
the child's parents. The action from which the June 16,
2014, judgment resulted was assigned case number
2016, the Cullman County Department of Human Resources
("DHR") initiated a dependency action, which was
assigned case number JU-12-481.02. As a part of that action,
the child was removed from the paternal grandmother's
home based on allegations that the paternal grandmother was
using illegal drugs. The record indicates that the child was
placed in the home of the petitioners.
6, 2017, the petitioners, proceeding pro se, filed the
petition that initiated the current action, case number
JU-12-481.03. The petitioners alleged that the paternal
grandmother had used illegal drugs and that, as a result, the
child had been placed in their home by DHR and had remained
there since November 2016. On June 15, 2017, the juvenile
court entered a pendente lite order in this action specifying
that the petitioners and the paternal grandmother would share
joint physical custody of the child, alternating weekly,
pending a final hearing on the petition. On July 26, 2017,
the paternal grandmother, who was also proceeding pro se,
moved to dismiss the petitioners' action. She later filed
a motion seeking an immediate return of custody of the child
to her, and she also amended her motion to dismiss.
August 9, 2018, the juvenile court entered a judgment in case
number JU-12-481.02 dismissing that dependency action and
relieving DHR from providing further services to the family.
September 27, 2018, the juvenile court entered an order in
this action denying the paternal grandmother's motion to
dismiss the petitioners' claims. The juvenile court
conducted a hearing in this action on November 14, 2018.
November 15, 2018, the juvenile court entered a judgment in
which it modified the June 16, 2014, custody determination;
it awarded custody of the child to the petitioners and
awarded the paternal grandmother visitation with the child.
The paternal grandmother, proceeding pro se, timely appealed.
grandmother argues that the petitioners sought to modify the
final custody judgment that had awarded her custody of the
child. In an action seeking to modify a final custody award
entered in a dependency action, a party must meet the
evidentiary standard set forth in Ex parte McLendon,
455 So.2d 863 (Ala. 1984). In this case, the petitioners'
June 6, 2017, petition contained allegations apparently
similar to those contained in DHR's 2016 petition.
However, the juvenile court dismissed DHR's dependency
action. After DHR's dependency action was dismissed, the
juvenile court scheduled a hearing on "the
grandparents' petitions for custody." In its
November 15, 2018, judgment, the juvenile court stated that
the matter was before it on the petitioners'
"petition for custody." The juvenile court made
findings that both the paternal grandmother's and the
paternal grandfather's substance-abuse issues were in the
past. However, the juvenile court did not mentioned the
McLendon standard or any other standard in its
November 15, 2018, judgment. Given the foregoing, we conclude
that the paternal grandmother is correct that this matter was
in the nature of a custody dispute and was not a dependency
action. See J.A.P. v. M.M., 872 So.2d 861, 866 (Ala.
Civ. App. 2003) (action was in the nature of a custody
dispute rather than a dependency action).
paternal grandmother argues on appeal that the juvenile court
erred in conducting the hearing without first swearing in the
parties and in entering the judgment without any evidentiary
support. In her appellate brief, the paternal grandmother
cites L.W. v. Cullman County Department of Human
Resources, 181 So.3d 1070 (Ala. Civ. App. 2015). In that
case, L.W., the mother, argued that the juvenile court had
erred in entering a judgment awarding custody of her minor
child to a third party. The mother argued that she had not
received notice of the proceedings and that the juvenile
court had not received any evidence at the hearing conducted
before it entered its judgment. The appellee in that case,
the Cullman County DHR, conceded that "the judgment was
entered in a manner inconsistent with the mother's
due-process rights." L.W. v. Cullman Cty. Dep't
of Human Res., 181 So.3d at 1071. Accordingly, this
court reversed the judgment and remanded the cause to the
juvenile court. L.W. v. Cullman Cty. Dep't of Human
Res., supra. Given the foregoing, the paternal
grandmother's arguments on appeal are sufficient to raise
a due-process argument.
case, only the parties, the guardian ad litem, and the
attorney appointed in DHR's dependency action to
represent the father were present at the November 14, 2018,
hearing. The father's attorney, who appeared without his
client, made a representation regarding the father's
whereabouts at the time of the hearing and was excused from
the proceeding. The guardian ad litem arguably made a few
representations, or at least summaries of the parties'
positions, to the juvenile court. "The unsworn
statements, factual assertions, and arguments of counsel are
not evidence." Ex parte Russell, 911 So.2d 719,
725 (Ala. Civ. App. 2005). Thus, any arguments or
representations made by the father's attorney or by the
guardian ad litem before the juvenile court did not
constitute evidence. Ex parte Russell, supra; Ex
parte Dean, 137 So.3d 341, 347-48 (Ala. Civ. App. 2013).
parties themselves appeared before the juvenile court pro se.
They were not sworn in to testify. The paternal grandmother
characterizes the hearing as a discussion before the juvenile
court that was composed of "just general comments"
by the parties. The record supports that characterization of
hearing began as an unsuccessful effort by the juvenile court
to encourage the parties to reach an agreement concerning
custody of the child, and those efforts continued well into
the hearing. Also, throughout most of the hearing, the
guardian ad litem encouraged the parties to reach an
agreement as well, and he attempted to facilitate their
settling the dispute.
the efforts of the juvenile court and the guardian ad litem
might have been well-intentioned, it was not the role of the
juvenile court or the guardian ad litem to mediate a
settlement between the parties in lieu of the scheduled