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Bo.S. v. Be.s.

Alabama Court of Civil Appeals

August 23, 2019

BO.S. and L.P.

         Appeal from Chambers Juvenile Court (JU-16-124.02 and JU-16-125.02).

          Gregory A. McKay, Lanett, for appellants.

          Kris R. Patton of Akridge & Balch, P.C., Auburn, for appellee.

         HANSON, Judge.

         The custodians of two minor children, K.M.S. and E.J.S. ("the children"), i.e., Bo.S. and his wife L.P. ("the custodians"), appeal from two judgments of the Chambers Juvenile Court awarding custody of the children to their biological mother, Be.S. ("the mother"), as of June 1, 2019. We reverse and remand.

         The record reflects the following pertinent facts.[1] The children, who were six years old and three years old at the time of trial in these cases, have been in the care of the custodians since August 2016.

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          In January 2017, the children were judicially determined to be dependent, and custody of the children was awarded by the juvenile court to the custodians, subject to alternating-weekend visitation by the mother at the custodians' residence "upon mutual agreement of the parties."

         In July 2017, the mother filed petitions in the juvenile court seeking a modification of the child-custody or, alternatively, the visitation provisions of the January 2017 judgments. The mother alleged in her petitions that a material change of circumstances warranting "a change in custody and/or visitation" had occurred, averring that she "ha[d] completed rehabilitation for substance abuse/misuse issues," had "continue[d] to engage in [an outpatient] program" at a drug-rehabilitation center, was being tested for drug use "continually," could "demonstrate to the [juvenile court] that sh[e] has a history of sober living," had acquired "adequate housing," and had obtained work, all of which, she said, had "rectified the underlying concerns which [had led] to the dependency adjudication." The mother also posited in her petitions that a change in custody would materially promote the children's best interests and that such a change would more than offset any disruptive effect, alleging in that regard that "[t]he children [were] being systematically alienated from" the mother, that the custodians had (since May 2017) improperly restricted her visitation to three hours per month of supervised visitation in a public place, that the custodians were unwilling to grant further visitation without judicial intervention, and that the custodians had not kept the mother informed about any therapy sessions involving K.M.S.

         In response to the mother's petitions, the custodians filed a responsive pleading in each case. In their responsive pleadings, the custodians, in pertinent part, denied that there had been a material change of circumstances, averred that the May 2017 visitation restrictions discussed by the mother had stemmed from the mother's tobacco use and had been prompted by the recommendation of the children's guardian ad litem, and denied having failed to inform the mother about the progress of therapy sessions involving K.M.S. After the filing of those responsive pleadings, the juvenile court held a hearing on whether to modify the mother's visitation with the children on a pendente lite basis, ultimately ordering in September 2017 that the parties were to utilize an Auburn-based court-appointed special-advocate center for four visitation sessions and that the mother was, before and after those visits, entitled to supervised weekend visitation for two hours twice per month. On December 15, 2017, the juvenile court again reviewed the mother's pendente lite visitation and awarded her unsupervised visitation with the children every first and third Saturday for 10 hours; however, the juvenile court stressed that the visitation was "personal to" the mother and that the children were not to be around the mother's brother, a specified male person (M.S.), or any paramour of the mother.

         On December 18, 2017, the custodians filed a motion in each case seeking the immediate suspension of the mother's unsupervised visitation with the children, averring that one of the children had stated to one of Bo.S.'s children that the mother, during an unsupervised-visitation session on December 16, 2017, had allowed an unknown man into the presence of the children at issue. The mother then filed written responses to the custodians' motions in which she averred that she had not violated the December 15, 2017, visitation order, posited that the custodians were attempting to "systematically alienate[]" the children from her and to prevent her "from having a relationship with [the] children," alleged that the custodians had

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compelled the older child to admit that "she had previously stated she didn't want to live with" the mother, and had changed one of the children's birthday-party plans to exclude the mother. Neither the custodians' motions nor the mother's responses were supported by any affidavits or evidentiary material, and the juvenile court entered orders on December 19, 2017, denying the custodians' motions on the stated basis that no harm had apparently come to the children during the mother's unsupervised visitation on December 16, 2017. The juvenile court thereafter made further adjustments to the mother's pendente lite visitation schedule in June 2018 and set the cases for a final hearing to be held in November 2018.

         On November 29, 2018, the juvenile court held an ore tenus hearing on the mother's petitions. At that hearing, the mother, the mother's roommate, two representatives of the Birmingham drug-rehabilitation center where the mother was residing, the manager of the center's thrift store (at which the mother had been employed), and L.P. each testified. The representatives from the drug-rehabilitation center testified that the mother had not tested positive for drug use over the preceding year; had "graduated" from the center's program and had moved into a two-bedroom apartment reserved for such graduates, where she had lived with a roommate for the preceding 16 months; that the mother had taken supplemental religious, financial, and vocational classes offered by the center; that the mother's progress toward being able to be "a full-time mother" had been by "tremendous leaps and bounds"; that the mother was free to leave the center; and that the center's staff desired the mother to be successful and to be able "to go on and move on with her life" rather than "stay[ing] plugged in to [the center for] the rest of her life." Further, the thrift-store manager testified that he had not observed the mother's having had any problems with her work ethic or with substance abuse, and the mother's roommate testified that she had not observed the children's having had any issues during visitation sessions at the mother's apartment.

         The mother, during her testimony, stated that she was close to having completely satisfied, through payments and community service, her penal obligations stemming from criminal charges in Lee County and that she had acquired a general-educational diploma from a community college near the drug-rehabilitation center. The mother testified on direct examination that her relationship with the custodians was "wonderful"; expressed gratitude to the custodians for their care of the children, opining that the custodians had "done something for them that [she] couldn't do" and had "given them a life that [she did not] know if [she would] ever fully be able to give them"; and stated that the younger's child's practice of calling L.P. "Mommy" did not bother the mother. On cross-examination by counsel for the custodians, the mother admitted that, at the time that the custodians had taken custody of the children in August 2016, the children had been "in pretty bad shape" but that, as of the time of trial, the mother had "never seen them better." On further cross-examination by the guardian ad ...

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