What Does A Judge Need to Find a Child Dependent?
A judgment adjudicating a child as dependent, known as dependency, must be supported by clear and convincing evidence. Furthermore, the evidence must show that the custodial parent is culpable for the child’s dependency. This is what the Court of Civil Appeals recently reiterated in their reversal of a dependency and custody decision in A.N.F. v. D.F.[1]
Circumstances Giving Rise to the Dependency Case
In A.N.F., the child was in the care and custody of the maternal great-grandmother since she was one month old. At the time of the trial, the child was two years old. The maternal great-grandmother, alleged the following in support of her dependency petition:
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the mother had unstable housing and transportation due to her reliance on her boyfriend, with whom she had an unstable relationship;
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the mother quit two jobs;
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the mother failed to consistently take her prescribed medication for her various mental-health issues, including bipolar disorder, borderline personality disorder, and depression, causing her to become agitated;
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the mother’s home was filthy and unfit for the child;
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the car seat and sippy cups that the mother had for the child were covered in mold and mildew; and
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the mother lacked a bond with the child.
After trial, the trial court found the child to be dependent, awarded limited supervised visitation with the child to the mother, and awarded the maternal great-grandmother sole legal and physical custody. The mother appealed.
Ultimately, the Court of Civil Appeals rejected the trial court’s adjudication of dependency. Why? The trial court’s ruling was unsupported by clear and convincing evidence.
The Dependency Judgment Was Unsupported by Clear and Convincing Evidence
The mother’s housing and transportation were not a problem.
First, with regard to the stability of the mother’s housing and transportation, the mother did live with her boyfriend and share his car. In addition, the legal mother did previously separate from her boyfriend for one week eight months prior after an argument. However, the Court of Civil Appeals found:
No evidence was presented indicating that the… argument between the mother and [her boyfriend] continued to negatively impact the mother’s housing stability or access to an automobile at the time of the trial. To the contrary, the mother testified that she and [her boyfriend] had maintained their relationship, that [her boyfriend] had purchased a home they shared, and that she continued to have access to the automobile they shared.
The mother was employed.
Second, with regard to the mother’s employment, the mother testified that she quit her previous job due to the length of her commute after moving homes. In addition, the mother testified that she had secured a new job. The Court of Civil Appeals found, “[n]o evidence was presented to refute the mother’s testimony regarding her employment status” and “the record… contains insufficient evidence indicating that the mother could not provide for the child.”
There was no evidence of harm from the mother’s failure to take her medication.
Third, with regard to the mother’s failure to take her medication, she testified that she was compliant with her medication regimen, but that she would not take her medication if she had not eaten due to nausea. The maternal great-grandmother testified that when the mother did not take her medication, she would yell and be hard to communicate with. The Court of Civil Appeals, however, stated that, while the trial court could have disbelieved the mother’s testimony, “the record lacks evidence from which the juvenile court could have been clearly convinced that the mother’s failure to take her medications negatively affected her ability to parent the child.”
There was no evidence that the mother’s home was unsanitary or unsafe.
Fourth, with regard to the issues raised by the maternal great-grandmother concerning the fitness of the mother’s home, all were with regard only to her former home, which she had moved from as opposed to her current living arrangement. The Court of Civil Appeals stated “[c]onsidering the scant evidence regarding the cleanliness of the mother’s former house and the lack of evidence regarding the condition of her new house at the time of the trial, we find insufficient evidence to establish that the child was dependent because of the condition of the mother’s house.”
There was no evidence that the child was exposed to unsanitary items.
Fifth, with regard to the cleanliness of the child’s sippy cups and car seat, there was no evidence that the child had used those items. Furthermore, the maternal great-grandmother admitted that those items had been cleaned. The Court of Civil Appeals therefore held “[t]here was no evidence to suggest that the car seat or the sippy cups continued to be an issue at the time of the trial.”
The Mother was Not Culpable for the Child’s Dependency
Lastly, and perhaps most importantly, the maternal great-grandmother argued that the child was dependent due to the Legal Mother’s failure to maintain a significant parental relationship. The mother admitted that she did not have a bond with the child. However, the lack of a bond is not in of itself enough to find a child dependent. The trial court must also take into consideration how the circumstances in which a bond was broken or failed to form. This is the pivotal issue in this case and the key takeaway. The Court of Civil Appeals found:
The extent to which the mother’s actions contributed to her admitted lack of a bond with the child are uncertain. What is certain to this court, however, is that, considering the cumulative effect of this court’s dismissal of the appeal in A.N.F. [an appeal of a prior dependency petition], the procedural posture of this case, and the limitations the juvenile court placed on the contact between the mother and the child during the initial dependency action and the current dependency action, it is not surprising that the mother has failed to develop a bond with the child.
In addition, the Court of Civil Appeals cited to a prior opinion of theirs,[2] stating in that case that “this court rejected the mother’s failure to develop a bond with her child as the basis for her child’s dependency, in part, because the mother and the child’s relationship had been interrupted as a direct result of the juvenile court’s having acted outside its discretion in finding the child to be dependent.” In other words, the trial court should have considered the mother’s culpability in failing to maintain a relationship. Here, it was clearly the opinion of Court of Civil Appeals that there was not clear and convincing evidence that the mother was to blame for having not been able to maintain a relationship with her child.
To make the Court of Civil Appeals point via an analogy from the extreme: if someone were to kidnap a child and go into hiding, the kidnapper cannot then be awarded custody two years later via dependency due to the lack of a bond between the child and his or her parents. The “why” matters.
What Could the Petitioner, or Her Counsel, Have Done Differently?
It is not enough to say that a custodial parent has erred to find dependency. That error must be connected to actual harm, neglect, or risk thereof to the child in question, and the custodial parent must be culpable for that error. If a petitioner does not provide sufficient evidence to the trial court, any order in their favor is due to be reversed.
The mother was not perfect, so what?
In this case, assuming the mother was harming, neglecting, or putting the child at risk due to her actions or inaction, only the parties knew how. So, instead of the maternal great-grandmother and relatives just stating concerns they had about the mother, they should have connected the actions of the mother to their effect on the child. The maternal great-grandmother failed to connect the dots. As a result, the Court of Civil Appeals opinion can be summarized in two words: “so what?”
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NM and boyfriend had a spat 8 months prior. So what? Did either of them engage in domestic violence? Is there still instability? Has the relationship continued to deteriorate? The mother left and relied on support of family for one week; was that somehow irresponsible?
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The mother quit her job. So what? How is that a problem when she has a new job? Was it somehow irresponsible for her to get a job closer to her new home?
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The mother does not take her mental-health medication and yells. So what? How did that affect the child? Did the mother yell at others in front of the child? Did she yell at the child? Did she otherwise negatively impact the child? Was there a risk to the child?
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The mother’s former living situation was bad.[3] So what? She no longer lives there. Perhaps the issues with her last residence caused her as a responsible parent to find an alternative living situation.
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Child’s seat and cups were filthy. So what? Was she actively using them? How long were they filthy? Was the cleaning not sufficient?
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No bond. So what??? Was this solely the fault of the mother or did the court and the maternal-great grandmother hamper the bond. This is not a ground for dependency. This is a best interest argument.
What evidence of dependency did the maternal great-grandmother need to show?
If any of these questions as to any of these points had been connected by the maternal great-grandmother during the trial court proceedings, it is likely that the trial court’s judgment would have withstood the appeal. To that end, assuming it existed, the maternal great-grandmother could have brought in evidence that:
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the mother and her boyfriend constantly fought or that there was a history of domestic violence;
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the mother traumatizes the child by her outbursts;
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the mother has a history of living in unsanitary and unsafe conditions in all of her homes;
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the mother has already started to make her new home unsanitary and dangerous;
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the mother harmed her other children by allowing them to live in unsafe and unsanitary conditions;
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the mother allowed the child to use a moldy car seat and drink from a mildewed cup;
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the mother only took advantage of 30% of the time she had to spend with the child; or
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the mother was on her phone for 60% of her visitation time.
The legal mother also could have called an expert witness to testify as to how the mother skipping doses of her medication could cause her to have delusions, psychosis, uncontrollable anger, etc. The expert witness could have further testified that this would be harmful to the child or prevent her from caring for the child.
Perhaps, custody with the mother was in the child’s best interest.
On the other hand, perhaps the maternal great-grandmother failed to connect the dots because the actions of the mother had no impact on the child. In that sense, perhaps the decision of the Court of Civil Appeals was not only legally correct but morally correct too. As the Court of Civil Appeals reiterated three times in this opinion, “[p]arents and children have a fundamental right to maintain their relationship that does not evaporate simply because the parents have lost temporary custody of their child.”
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[1] No. CL-2025-0736, 2026 Ala. Civ. App. LEXIS 50 (Civ. App. May 1, 2026)
[2] E.W. v. D.H., No. CL-2024-0202, 2025 Ala. Civ. App. LEXIS 16 (Civ. App. Feb. 21, 2025)
[3] Note also: Ala. Code § 12-15-314: “There shall be a rebuttable presumption that children cannot be removed from the custody of their parents solely because of a need for emergency housing.”
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