In A.B. v. A.A. and L.D.A. the mother of a minor child, A.B., appealed an order by the Russell Juvenile Court awarding custody to the child’s aunt, A.A., and uncle, L.D.A. On December 4th of 2019 the aunt and uncle filed a dependency petition seeking custody of the child. Attached to the petition were letters of guardianship submitted by the mother granting guardianship to the aunt and uncle. On August 16, 2020, the Juvenile court entered its judgment finding the child dependent and awarding custody to the aunt and uncle. The order awarded the mother visitation based on terms that both parties could agree to. The mother then appealed.
In her appeal the mother argues that her due process rights were violated. She claims that because the scheduling notices referred to the hearing only as a “dependency hearing” she was unaware that custody of the child would be determined at the hearing. The Appellate court examined several appeals regarding violation of due process rights of parents in custody matters.
In N.J.D. v. Madison Cnty. Dep’t of Hum. Res. the father appealed the decision by the Madison Juvenile Court finding his children dependent and awarding custody to the maternal grandfather. He argued that he was deprived of due process because the notice her received stated that a “review” hearing was scheduled. The father did not show up at the hearing and his attorney argued at the hearing that they were not provided sufficient notice to be aware that custody would be determined at the hearing. N.J.D. v. Madison Cnty. Dep’t of Hum. Res., 110 So. 3d 387, 390-91 (Ala. Civ. App. 2012).
In C.O. v. Jefferson County Department of Human Resources 206 So. 3d 621 (Ala. Civ. App. 2016), the Appellate court heard a similar argument regarding a custody ruling. The court set the matter of dependency “for trial”. The mother and father failed to appear, and custody was granted to an aunt of the children. The mother and father appealed, arguing that their due process rights were violated because they were unaware that the hearing would address custody. The appellate court held that the trial court gave adequate notice to the parents that the trial would hear evidence that could affect the rights of the parties regarding custody. Unlike N.J.D. and other cases the Appellate court reviewed in this analysis, in which the trial court’s notices on the hearing presented it to be a review hearing which covers only pre-trial information or planning, the trial court in C.O. made sufficiently clear what the nature of the hearing would be.
In the case at hand, the trial court scheduled the dependency hearing and rescheduled multiple times because of Covid-19 restrictions. The mother moved to have the hearing held via video conference as she was unable to travel to the United States due to Covid-19 restrictions on June 2, 2020, and the order granting her motion noted that failure to provide a correct email address for participants could result in loss of custody and visitation rights. The Appellate court noted that the notice from the trial court in this case provided adequate information regarding the nature of the trial, and that the mother fully participated in the trial, presenting evidence and cross-examining witnesses on her own behalf.
In her appeal the mother also argues that the trial court erred in its visitation award. The trial court awarded visitation to the mother with the condition that visitation be determined by the custodians due to the complications of the mother being located outside the country. The Appellate court recognized that while the trial court has the discretion to award visitation its decision is subject to reversal if it gives the custodian the ability to decide the visitation schedule. The Appellate court noted that in C.W.S. v. C.M.P., 99 So. 3d 864, 869 (Ala. Civ. App. 2012), the court held that a minimum visitation schedule should be established if the parties were unable to agree. The trial court could have established a minimum visitation schedule instead of allowing the custodial parents to determine the mother’s visitation schedule.
The Appellate court affirmed the trial court’s decision regarding the mother’s first argument on due process and reversed the trial court’s decision regarding visitation and remanded with instructions to enter an award of visitation that complies with their opinion.
Brennan DePace was born and raised as a pastor’s child and has carried with him the strong Biblical values passed on from his father. DePace is the youngest of five children who received a rigorous and thorough home-schooled education. He is now a Junior at Auburn University at Montgomery studying History, with the hopes of attending law school and becoming an attorney. DePace serves as Legal Assistant to the Hon. Samuel J. McLure of The Adoption Law Firm.