Dependency As To One Parent

Dependency as to One Parent & Ex Parte E.D. Overruled

M.C.A. v. Etowah County Dept. of Human Res. and O.P., CL-2023-0286

(Ala. Civ. App. Jan. 31, 2024)

M.C.A. was a father’s appeal of a judgment out of Etowah County Juvenile Court which awarded custody of two children to the mother, awarded the father supervised visitation, and terminated DHR’s involvement in the matter.

The father’s argument on appeal was that the juvenile court was “without authority” to award custody because “it was undisputed that the mother was a fit parent for the children at the time of the disposition” of custody. Under the Alabama Juvenile Justice Act (AJJA), a juvenile court can make a custodian disposition of a child only if that child is found to be dependent at the time it enters the dispositional judgment. The father argued that the children could not be dependent due to the mother’s undisputed fitness. Therefore, he argued, the juvenile court could not make an award of custody.

The father relied on a case out of the Court of Appeals from 2018, E.D. v. Lee Cnty. Dept. of Human Res., 266 So. 3d 740, 744 (Ala. Civ. App. 2018).

In E.D., the Court of Appeals “held, that generally, if a joint custodian has failed to ‘properly care for and supervise’ a child, but the child’s other joint custodian is capable of providing the child that proper care, protection, and supervision, the child is not dependent.”

However, in M.C.A., the Court “reconsidered” the E.D. holding and concluded that it “does not comport with” the Alabama Supreme Court’s holding in Ex parte L.E.O., 61 So. 3d 1042 (Ala. 2010).

Under Ex parte L.E.O., the Alabama Supreme Court explained that under the relevant statute (then, § 12-15-1(10), now § 12-15-102(8)(a)), “a child was dependent if he or she met one of a list of factors and, with regard to those factors, was ‘in need of care or supervision.’” (emphasis in original). The Alabama Supreme Court stated that, when a juvenile court is considering whether a child is in need of care or supervision, it must consider “whether the child is receiving adequate care and supervision from those persons legally obligated to care for and/or to supervise the child.” (emphasis in original). Because “persons” is a plural form of the word “person,” the Court of Appeals explained that the Alabama Supreme Court “referred to both of the child’s joint custodians.”

Therefore, “even if a child has a fit joint custodian, that child can still be ‘in need of care or supervision’ with regard to the child’s other joint custodian, and, therefore, the child can be a dependent child.”

The Court of Appeals therefore overruled E.D. to the extent that it conflicts with L.E.O.

Here, under L.E.O. and § 12-15-314 (juvenile court may permit a dependent child to remain with a parent), the juvenile court had jurisdiction to award custody to the mother “if the father’s conduct would render the children dependent as to the father.”

Why did it matter here whether the children were dependent? The Court of Appeals noted that “[t]he father’s litigation strategy in these cases appears to be to seek reinstatement of unsupervised contact between himself and the children pursuant to that divorce judgment.”

The juvenile court’s final judgments – which awarded custody to the mother, awarded the father supervised visitation, and terminated DHR’s involvement in the matter – did not explicitly find that the children were dependent. However, a finding of dependency can be implicit in a juvenile court’s judgment.

The Court therefore “look[ed] to the record to determine whether a finding of dependency may be implied in the juvenile court’s April 5, 2023, judgments.”

The mother and father were divorced in January 2020, and the mother received sole physical custody with unsupervised visitation to the father.

The mother had sought divorce one month after Calhoun DHR investigated reports that the father had sexually abused his stepdaughter. Calhoun DHR took no action because “the family had not cooperated” and “no further information could be gathered.”

In July 2020, Etowah DHR received a report of inadequate shelter for the children while they were visiting at the father’s home. DHR case workers learned of the allegations of sexual abuse of the stepdaughter by the father, and initiated dependency actions in the Etowah Juvenile Court.

In February 2021, the juvenile court entered judgments finding the children dependent and awarding pendente lite custody to DHR. DHR placed the children into the mother’s home. Those judgments were affirmed on appeal.

In January 2022, DHR filed motions requesting that custody of the children be returned to the mother. The juvenile court granted that request.

The Court recounted the following facts supporting a finding of dependency:

In 2020, DHR found the father indicated for sexual molestation of the stepdaughter. He purchased lingerie for her, forced her to model it for him, encouraged her to allow him to take suggested photos of her, requested that she sleep in his bed when they were alone, and touched her inappropriately.

When Etowah DHR investigated, “the father did not dispute that he had taken those actions.” The father “attempted to excuse his improper conduct…by stating that he had been ‘testing’ her to see how she would react if a teenaged boy had exhibited similarly inappropriate conduct toward her.”

Further, a case worker testified that the father was only interested in visiting his daughter, not his son. The father visited the children twice in two years. He refused to visit because he did not want the visits to be supervised. The father did not contact DHR to inquire about the welfare of the children. The father did not participate in any services or evaluations that would demonstrate he “could and would behave appropriately with the children.”

The Court found that the juvenile court, “like DHR, could reasonably be skeptical of the father’s explanation for that sexual abuse and find his explanation to be inappropriate.” The father’s children were “approaching the age at which [the [sexual] abuse [of the stepdaughter] began.” The father refused to visit, and had no contact with the children for four to five months. “That evidence calls into question the father’s intent with regard to the children and demonstrates that his priority is not the safety, protection, or best interests of the children.”

There was sufficient evidence to demonstrate that the children were “in need of care and supervision and the protection of the state.” The Court therefore concluded that “a determination that the children were dependent is implicit in the juvenile court’s April 4, 2023, judgments.”

The father failed to argue that the evidence failed to support a dependency determination, which resulted in waiver of that argument. The juvenile court’s judgments were affirmed.