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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)

          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. 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 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 litem, the mother admitted that she had no concerns arising from the custodians' care of the children; although she stated that "I want my kids to come home," she agreed that the custodians had taken good care of the children.

         L.P. testified at trial that she and Bo.S. (who is the biological paternal grandfather of K.M.S., the older of the children) had been "put[ting] all of [their] time" into the children since they had been placed in the custodians' care. According to L.P.'s testimony, K.M.S.'s daily routine typically included attending Huguley Elementary School, coming home via school bus, and doing homework while in the after-school care of Bo.S. or L.P.'s parents (who live adjacent to the custodians), whereas E.J.S. attended day-care sessions until being picked up by L.P. after her working hours. L.P. testified that the custodians' and the children's usual evening activities included household chores, occasional school activities, and preparation for the following day. The children's weekend activities, according to L.P.'s testimony, involved cleaning, attending football or baseball games played by an older child of hers, and participation in worship services and Sunday-school sessions at a nearby Methodist church; L.P. added that, at the time of trial, the children had been practicing at the church on Wednesday nights for a winter-holiday presentation and had previously participated in a similar spring presentation. L.P. opined that the children had "established roots in [the Chambers County] community" and that "[e]verybody knows them and ... loves them," and she observed that K.M.S. had earned no lower than a 97% mark in any of her subjects in elementary school while "still getting a lot of reading done." L.P. testified that the children did not typically pose discipline problems, but she added that the custodians "have more issues" with the children, and especially "out of the norm" behavior from E.J.S., when they "come back from [the mother's]" apartment, although she admitted on cross-examination by the mother's counsel that "they look like they are well cared for when they come back."

         At the close of testimony, the juvenile court invited the guardian ad litem to make a recommendation. While acknowledging her admiration for the progress that the mother had already made, the guardian ad litem nonetheless opined that she was "not sure [the mother] is quite ready to take on the challenge of a six-year-old and a three-year-old" in terms of financial care, expressed concerns that the mother's Birmingham apartment (which the guardian ad litem had visited) was "not in ... the best area of town," and voiced further concerns about the mother's continuing dependence upon the resources of the drug-rehabilitation center. After the guardian ad litem had made the foregoing recommendation, the juvenile-court judge stated his opinion that the mother had met her burden of proof and that she was "ready to have [the] children back" as of the end of K.M.S.'s first-grade year. The juvenile court then entered judgments in each case on December 10, 2018, awarding custody of the children to the mother as of June 1, 2019, stating the view of that court that "a material change in circumstance has occurred since the last custody order and the change in custody will materially promote the welfare of the children." Following the denial of the custodians' postjudgment motions to alter, amend, or vacate the judgments modifying custody, the custodians timely appealed to this court, after which the juvenile court designated a court reporter to transcribe the proceedings and determined that a sufficient record for appellate review existed; thus, this court has appellate jurisdiction pursuant to Rule 28(A)(1)(c)(i), Ala. R. Juv. P.

         The custodians assert on appeal that the judgments of the juvenile court transferring custody of the children from them to the mother are contrary to principles of custodial repose most notably set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), and most recently applied by our supreme court in Ex parte D.B., 255 So.3d 755 (Ala. 2017), because, the custodians say, the mother did not prove, among other things, that the positive good brought about by the modification will more than offset the inherently disruptive effect caused by uprooting the children from their existing custodial arrangement. Based upon our reading of Ex parte D.B., a case that, like Ex parte McLendon, constitutes binding authority under Ala. Code 1975, § 12-3-16, we conclude that the custodians are correct and that the judgments must be reversed.

         We start our analysis by observing that Ex parte McLendon, like these cases, involved a custody dispute between a biological, noncustodial mother who had formerly served as a custodian of the child at issue and nonparent custodians who had been awarded custody of that child pursuant to a previous judgment. Further, in Ex parte McLendon, it was "also undisputed that the [biological] ... mother ... [was] able to provide a stable and wholesome environment for the child" at issue as of the time she had sought modification of custody; that she had the ability, along with her new husband, to earn "an income adequate to support both" the child and another, after-born child; that "[t]he [biological] mother's new husband ... would assist in the care and support of the child"; and that the child's nonparent custodians would be afforded "all reasonable visitation rights," including extended summer visitation. 455 So.2d at 865. In the view of our supreme court, however, none of the undisputed facts in Ex parte McLendon constituted a proper basis for affirmance of the trial court's judgment divesting the child's custody from the nonparent custodians, notwithstanding the generally applicable proposition that "[a] natural parent has a prima facie right to the custody of his or her child." Id. Rather, as our supreme court noted, "th[at] presumption does not apply after ... a prior [judgment] removing custody from the natural parent and awarding it to a non-parent" such that "[t]he superior right of the [biological] mother in [Ex parte McLendon] was cut off by the prior [judgment] awarding custody" of the child to the nonparent custodians in that case. Id.

         Ex parte McLendon further rejected the conclusion of this court that the trial court's custody-modification judgment should be affirmed on the basis that "the [biological] mother had met her burden 'to show a change in circumstances since the divorce [judgment] in 1980 and that the grant to her of custody was in the best interest of her child.'" Ex parte McLendon, 455 So.2d at 866 (quoting McLendon v. McLendon, 455 So.2d 861, 863 (Ala. Civ. App. 1984)). In doing so, our supreme court expressly rejected the proposition that, when a noncustodial parent seeks to modify a judgment awarding custody of a child to one or more nonparent custodians, a trial court should apply a pure best-interests standard: "Although the best interests of the child are paramount, this is not the standard to be applied in this case." Ex parteMcLendon, 455 So.2d at 866. ...

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