S.R., R.R., and A.M.
from Jefferson Juvenile Court (JU-15-1658.02).
Bodie, Trussville, for appellant.
William T. Fortune, Jr., Vestavia, for appellee A.M.
Gustavo Heudenbert of Legal Aid Society of Birmingham,
guardian ad litem.
December 2017, T.D. ("the father") filed in the
Jefferson Juvenile Court ("the juvenile court") a
form petition to modify a previous judgment of the juvenile
court based on the alleged relapse into drug and alcohol
abuse by A.M. ("the mother"), who the father
alleged was the child's custodial parent. The father also
filed a form "complaint" in which he alleged that
the child was dependent based on the mother's relapse
into drug and alcohol abuse and that the child had been
abandoned to his custody by the mother. In August 2018, the
juvenile court entered a pendente lite order in which it
indicated that it had granted the oral motion to intervene
made by the child's maternal aunt, S.R. ("the
maternal aunt"), and the child's maternal uncle,
R.R. ("the maternal uncle"), over the father's
objection and awarded S.R. custody of the child pending
resolution of the litigation. After a trial held on October
23, 2018, the juvenile court entered a judgment on January
14, 2019, awarding custody of the child to the maternal aunt
and the maternal uncle and awarding the father certain
specified visitation rights. The father filed a timely notice
of appeal on January 25, 2019.
following legal principles guide our review of the
father's appeal. The juvenile court's factual
findings in a dependency case when the evidence has been
presented ore tenus are presumed correct. T.D.P. v.
D.D.P., 950 So.2d 311 (Ala.Civ.App. 2006). A
"dependent child" is defined in Ala. Code 1975,
§ 12-15-102(8), to include:
"a. A child who has been adjudicated dependent by a
juvenile court and is in need of care or supervision and
meets any of the following circumstances: ".... "2.
Who is without a parent, legal guardian, or legal custodian
willing and able to provide for the care, support, or
education of the child. ".... "6. Whose parent,
legal guardian, legal custodian, or other custodian is unable
or unwilling to discharge his or her responsibilities to and
for the child."
finding of dependency must be supported by clear and
convincing evidence. Ala. Code 1975, § 12-15-310(b).
When a juvenile court has not made specific factual findings
in support of its judgment, we must presume that the juvenile
court made those findings necessary to support its judgment,
provided that those findings are supported by the evidence.
K.C. v. Jefferson Cty. Dep't of Human Res., 54
So.3d 407, 413 (Ala.Civ.App. 2010). In addition, the juvenile
court may consider the totality of the circumstances when
making a finding in a dependency proceeding. G.C. v.
G.D., 712 So.2d 1091, 1094 (Ala.Civ.App. 1997); see
also D.P. v. State Dep't of Human Res., 571 So.2d
1140 (Ala.Civ.App. 1990).
father first argues that the juvenile court erred by
granting, over his objection, the maternal aunt and the
maternal uncle's oral motion to intervene. The father
first contends that, under Rule 24(c), Ala. R. Civ. P., the
motion to intervene was required to be in writing and served
pursuant to Rule 5, Ala. R. Civ. P. Indeed, Rule 24(c)
presupposes that the party wishing to intervene will serve a
written motion seeking intervention. However, Rule 7(b)(1),
Ala. R. Civ. P., permits oral motions when such motions are
made during a trial or a hearing. The pendente lite order
indicates that the matter had been called for a hearing
before the juvenile court at which the maternal aunt and the
maternal uncle orally moved to intervene; thus, we conclude
that the oral motion to intervene was proper under Rule
father argues that the juvenile court was not permitted to
grant the maternal aunt and the maternal uncle's motion
to intervene before the child was declared dependent. He
cites Kennedy v. State Department of Human
Resources, 535 So.2d 168, 170 (Ala.Civ.App. 1988), in
which this court indicated that a petition to intervene filed
by relatives in a dependency case should have been denied
because, this court said, "we [have] held that a
relative may petition the court for custody after parental
rights are terminated." That statement in
Kennedy was arguably dicta, because this
court pretermitted other arguments made by the mother in that
case based on the determination that the evidence supported
the conclusion that the child involved was dependent;
furthermore, we noted that the allowance of the intervention
was, if error at all, merely harmless error. 535 So.2d at
170. Moreover, Kennedy appears to be an aberrant
holding, the continued viability of which is seriously
doubtful in light of later precedents. See F.W. v.
T.M., 140 So.3d 950, 958 (Ala.Civ.App. 2013) (stating
that "[t]his court has routinely recognized that
relative caregivers and foster parents may seek and be
granted intervention in a dependency action"); see
also J.P. v. S.S., 989 So.2d 591 (Ala.Civ.App. 2008)
(affirming the award of custody to an aunt and an uncle who
had intervened in a dependency action to seek permanent
custody of the child). Thus, we find no reversible error in
the juvenile court's decision to allow the maternal aunt
and the maternal uncle to intervene.
father next argues that the juvenile court erred in stopping
the trial in the middle of the father's presentation of
evidence. The father contends that he was deprived of his
right to present his own testimony and the testimony of his
witnesses, both of which, he argues correctly, are hallmarks
of due process. See Crews v. Houston Cty. Dep't of
Pensions & Sec.,358 So.2d 451, 455 (Ala.Civ.App. 1978)
(explaining that due process requires, among other ...