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T.D. v. S.R.

Alabama Court of Civil Appeals

July 26, 2019

T.D.
v.
S.R., R.R., and A.M.

          Appeal from Jefferson Juvenile Court (JU-15-1658.02)

          EDWARDS, JUDGE.

         In 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.

         The 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."

         A 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).

         The 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 7(b)(1).

         The 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.

         The 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 things, "an opportunity to present evidence and arguments"). However, we note that the father's counsel, upon being informed of "where the [juvenile] court [was] leaning" after a short break taken during the redirect examination of the father by his counsel, reported to the juvenile court that the father did not desire to continue the trial. Thus, as the child's guardian ad litem and the mother both contend, the father waived any error that the juvenile court may have committed by acquiescing to the discontinuation of the trial. See N.G. v. Blount Cty. Dep't of Human Res., 216 So.3d 1227, 1236 (Ala. Civ. App. 2016) (concluding that the parents waived their right to an evidentiary hearing in a dependency case by stipulating to dependency and that, therefore, they "cannot now complain that they were deprived of their right to testify and to cross-examine witnesses for the state").

         The father next argues that the juvenile court erred in determining that the child should be placed in the custody of the maternal aunt and the maternal uncle. The father specifically contends that the juvenile court did not explicitly determine that the child was dependent and that the evidence presented at trial does not support an implicit determination that the child was dependent. See J.P. v. S.S., 989 So.2d at 598 ("[T]his court has held that when the evidence in the record supports a finding of dependency and when the trial court has made a disposition consistent with a finding of dependency, in the interest of judicial economy this court may hold that a finding ...


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