K.Y. v. J.S. and T.S. (Appeal from Marshall Juvenile Court: JU-18-172.03).

Rel: December 8, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________

CL-2023-0336
_________________________

K.Y.

v.

J.S. and T.S.

Appeal from Marshall Juvenile Court
(JU-18-172.03)

PER CURIAM.

In 2018, the Marshall Juvenile Court ("the juvenile court") entered

a judgment declaring J.G. ("the child") to be dependent and awarding

custody of her to her paternal grandparents, J.S. and T.S. ("the paternal

grandparents"). In 2021, K.Y. ("the mother") filed a petition seeking
CL-2023-0336

modification of the custody award; the juvenile court denied the mother's

petition. The mother did not appeal.

In September 2022, the mother filed a second petition to modify the

custody award; in her petition, the mother also requested that the

juvenile court hold the paternal grandparents in contempt. After a trial

held on November 15, 2022, the juvenile court entered an order denying

the mother's petition; its order stated that the mother had not met the

burden to modify custody set out in Ex parte McLendon, 455 So. 2d 863

(Ala. 1984). The mother filed a motion seeking reconsideration of the

juvenile court's order, which the juvenile court denied, and the mother

filed a notice of appeal; that appeal was assigned appeal number CL-

2023-0025. Because the juvenile court had not disposed of the mother's

claim for contempt, this court dismissed appeal number CL-2023-0025

because it had been taken from a nonfinal judgment. K.Y. v. J.S., (No.

CL-2023-0025, Apr. 10, 2023). Following the issuance of this court's

certificate of judgment on April 28, 2023, the juvenile court entered an

order on May 2, 2023, denying the mother's request to hold the paternal

grandparents in contempt. The mother filed a timely notice of appeal.

2
CL-2023-0336

On appeal, the mother argues that the burden imposed by the

standard set out in Ex parte McLendon should not apply to parents in

private dependency cases. She argues that the application of the

standard set out in Ex parte McLendon to petitions seeking to modify a

final dispositional order in a private dependency case results in the near

inability of a parent to regain custody of his or her child, regardless of the

parent's progress at remediating the issues that initially led to the child's

dependency. The mother does not argue that she presented sufficient

evidence to meet the standard set out in Ex parte McLendon, and we

therefore see no need to set out the evidence presented to the juvenile

court.

Indeed, as the mother concedes, the law is well settled:

"When a juvenile court has entered a judgment
awarding custody of a dependent child to a relative, a parent
seeking to modify that custody judgment must meet the Ex
parte McLendon standard in order to regain custody of the
child. J.W. v. C.B., 56 So. 3d 693, 699 (Ala. Civ. App. 2010);
M.B. v. S.B., 12 So. 3d 1217, 1219-20 (Ala. Civ. App. 2009);
and In re F.W., 681 So. 2d 208 (Ala. Civ. App. 1996)."

P.A. v. L.S., 78 So. 3d 979, 981 (Ala. Civ. App. 2011). See also In re F.W.,

681 So. 2d 208, 211 (Ala. Civ. App. 1996) (stating that, after the entry of

a judgment awarding custody of a child to a third party, "the [Ex parte]

3
CL-2023-0336

McLendon standard is activated when the biological parent seeks to

regain custody and … a parent's presumptive superior right does not

apply"). Our supreme court has also applied the standard set out in Ex

parte McLendon to a biological parent's petition for modification of a final

dispositional custody order entered in a previous dependency action. See

Ex parte D.B., 255 So. 3d 755, 756 (Ala. 2017) ("[I]t is undisputed that,

in order to succeed in her request to modify custody, the mother was

required to meet the well settled custody-modification standard set forth

in Ex parte McLendon ….").

The mother also concedes that a final dispositional order entered in

a dependency action serves to conclude the child's dependency because

the child is placed in the custody of a fit and proper custodian. See B.C.

v. A.A., 143 So. 3d 198, 205 (Ala. Civ. App. 2013) ("Once a juvenile court

has placed a dependent child into the 'permanent' custody of a proper

caregiver, the dependency of the child ends …."); S.P. v. E.T., 957 So. 2d

1127, 1131 (Ala. Civ. App. 2005) (explaining that, "[u]nder ideal

circumstances, … final dispositional orders coincide with the end of the

child's dependency, i.e., the child has a proper custodian 'and' is no longer

'in need of care or supervision' by persons other than the custodian).

4
CL-2023-0336

However, she complains that, in a private dependency action, in which

the parent is not provided with services to aid him or her to correct the

conduct or condition that rendered the child dependent, the final

dispositional order is often entered fairly quickly, without giving the

parent time to rehabilitate. Thus, she posits that "safe guards [sic]

should be in place or exceptions should be made to the [Ex parte

McLendon] standard in cases where natural parents are beyond the

[conclusion of the initial dependency action] but have improved and all

parties agree that reunification should still occur." 1

Although the mother is correct that Ex parte McLendon did not

arise out of a dependency action, she fails to recognize that it arose out of

a custody judgment awarding custody of a child to grandparents. See Ex

parte McLendon, 455 So. 2d at 864. In setting out the custody-

modification standard applicable to the facts at issue in Ex parte

McLendon, our supreme court first noted the principle that a parent's

fundamental right to the custody of his or her child may be overcome by

1Notably, although the paternal grandmother testified that the goal

was to reunite the child with the mother, she testified that she was not
sure when that reunification could be accomplished. She did not agree
that the child should be returned to the mother's custody at the time of
the trial.
5
CL-2023-0336

a judgment awarding custody of that child to a nonparent. Id. at 865

("The superior right of the mother in this case was cut off by the prior

decree awarding custody to the grandparents."). Our supreme court

explained that, once a judgment is entered awarding the custody of a

child to a nonparent and the child is placed in that person's home, the

standard set out in Ex parte McLendon serves as " 'a rule of repose,

allowing the child, whose welfare is paramount, the valuable benefit of

stability and the right to put down into its environment those roots

necessary for the child's healthy growth into adolescence and

adulthood.' " Id. (quoting Wood v. Wood, 333 So. 2d 826, 828 (Ala. Civ.

App. 1976)). Notably, our supreme court stated that "[w]e cannot

overemphasize that 'frequent disruptions [of custody] are to be

condemned.' " Id. at 866 (quoting Wood v. Wood, 333 So. 2d at 828).

As the paternal grandparents point out, this court is without

authority to create safeguards or exceptions to the application of Ex parte

McLendon. See Ala. Code 1975, § 12-3-16 ("The decisions of the Supreme

Court shall govern the holdings and decisions of the courts of appeals

...."); D.E.F. v. L.M.D., 76 So. 3d 834, 838 (Ala. Civ. App. 2011) (explaining

that, "even if we agreed with the father that the Ex parte McLendon

6
CL-2023-0336

standard somehow interferes with his reunification with the child, we

may not overrule precedent established by our supreme court"). If

safeguards or exceptions should be created, our supreme court is the only

court able to create them.2 Accordingly, we affirm the judgment of the

juvenile court denying the mother's petition to modify custody.

AFFIRMED.

Thompson, P.J., and Moore and Hanson, JJ., concur.

Edwards, J., concurs in the result, with opinion, which Fridy, J.,

joins.

2Our legislature would also be empowered to create or change the

standards applicable to modifications of custody arising out of final
dispositional judgments in dependency actions.
7
CL-2023-0336

EDWARDS, Judge, concurring in the result.

Although I must concur in the affirmance of the judgment entered

by the Marshall Juvenile Court ("the juvenile court") because of the

precedent set out in the main opinion, including Ex parte McLendon, 455

So. 2d 863 (Ala. 1984), and Ex parte D.B., 255 So. 3d 755 (Ala. 2017), by

which this court is bound, see Ala. Code 1975, § 12-3-16, I am disturbed

by the application of the standard set out in Ex parte McLendon to

custody judgments, like those in this case, entered by a juvenile court at

the conclusion of a dependency action. Generally speaking, the

McLendon standard imposes a presumption that a change in custody

from one custodian to another is "inherently disruptive" and, therefore,

requires that the noncustodial party rebut that presumption by

establishing that the change in custody would result in a net positive

outcome for the child, i.e., that the positive good resulting from a change

in custody would " 'more than offset' " the presumed " 'inherently

disruptive effect' " of the change in custody. Ex parte McLendon, 455 So.

2d at 865-66 (quoting Wood v. Wood, 333 So. 2d 826, 828 (Ala. Civ. App.

1976)). Because the standard presumes that a change in custody is

inherently disruptive, the party who seeks to modify custody must meet

8
CL-2023-0336

what this court has consistently described as a "heavy" burden in order

to secure a modification of custody. See, e.g., Ex parte Cleghorn, 993 So.

2d 462, 468 (Ala. 2008) ("The burden imposed by the McLendon standard

is typically a heavy one, recognizing the importance of stability …."); Ex

parte J.P., 641 So. 2d 276, 279 (Ala. 1994) (referring to the burden of proof

under the standard set out in Ex parte McLendon as "heavy"); Rogers v.

Rogers, 579 So. 2d 1353, 1354 (Ala. Civ. App. 1991) (same). Purportedly,

this is so that a child may enjoy the "valuable benefit of stability and the

right to put down into its environment those roots necessary for the

child's healthy growth." Ex parte McLendon, 455 So. 2d at 865 (quoting

Wood, 333 So. 2d at 828).

When applied in the context of a judgment awarding custody of a

child to a nonparent at the conclusion of a dependency action, I find

application of the standard set out in Ex parte McLendon troubling. The

standard does not take into account the child's interest in being, or desire

to be, reunited with his or her now fit natural parent. Moreover, the

standard proves to be a nearly insurmountable barrier to the restoration

of the natural family relationship, which I believe is deserving of more

consideration than that given to it when the standard set out in Ex parte

9
CL-2023-0336

McLendon is applied. Application of the standard set out in Ex parte

McLendon in these circumstances not only presumes that the

reunification of the child and his or her parent will have a disruptive

effect, but also fails to put any value at all upon the positive benefits that

may flow from the reunification and preservation of the natural family.

In dependency cases involving the Department of Human

Resources ("DHR"), a plan to reunify the family is made so that the

parent can attempt to ameliorate the conduct or condition that rendered

the child dependent so that the family can be reunited. According to the

Alabama Juvenile Justice Act ("the AJJA"), Ala. Code 1975, § 12-15-101

et seq., the stated goals of the juvenile courts include the goals of

preserving and strengthening families, Ala. Code 1975, § 12-15-101(b)(1),

of "reunit[ing] a child with his or her parent or parents as quickly and as

safely as possible … unless reunification is judicially determined not to

be in the best interest of the child," Ala. Code 1975, § 12-15-101(b)(3), and

of "achiev[ing] the foregoing goals in the least restrictive setting

necessary, with a preference at all times for the preservation of the family

and the integration of parental accountability and participation in

treatment and counseling programs." Ala. Code 1975, § 12-15-101(b)(8)

10
CL-2023-0336

(emphasis added). Furthermore, Ala. Code 1975, § 12-15-101(d), states

that the AJJA "shall be liberally construed to the end that each child

coming under the jurisdiction of the juvenile court shall receive the care,

guidance, and control, preferably in his or her own home, necessary for

the welfare of the child and the best interests of the state." (Emphasis

added.) DHR must, in most cases, make reasonable efforts to rehabilitate

a parent and reunify the family. Ala. Code 1975, § 12-15-312(b). During

that process, DHR must establish, if it desires to change the custodial

placement of the child or challenge a parent's request for a return of

custody, that the child remains dependent. See H.C. v. S.L., 251 So. 3d

793, 794 (Ala. Civ. App. 2017). When a parent is able to rectify the

conduct or condition that gave rise to the child's dependency, the family

can and normally should be reunited.

Instead, in contrast to dependency cases resulting in an award of

legal custody to DHR, once a dependency action is resolved with an award

of legal and physical custody to a third-party custodian and DHR is

relieved of supervision, application of the standard set out in Ex parte

McLendon to any request by a parent to regain custody renders any

success of the rehabilitative steps taken by the parent of almost no value

11
CL-2023-0336

in the calculation of the child's best interest and prevents the

reunification of the natural family. Ex parte D.B., 255 So. 3d 755, 763

(Ala. 2017) (concluding that, although the mother had remedied her drug

addiction and could take care of the child as well as the custodial

grandparents, the mother had not presented sufficient evidence to

support a custody modification because "Ex parte McLendon requires

more"). Furthermore, rigid application of the standard set out in Ex

parte McLendon does not allow for consideration of the effect of the initial

disruption caused by the removal of the child from the custody of his or

her natural parent. Based on my experience as a judge on this court, I

cannot help but conclude that, in practice, the application of the standard

set out in Ex parte McLendon has created a nearly insurmountable

barrier to the modification of the custody of a formerly dependent child.

As I recall, almost none of the parents who have sought a modification of

custody after the entry of a dependency and custody judgment awarding

legal and physical custody to a third-party custodian have been able to

present evidence establishing that modification would materially

promote the child's best interest such that the presumption that the

change in custody would detrimentally affect the child could be overcome.

12
CL-2023-0336

In my opinion, in cases involving a parent who has successfully

rehabilitated, the application of the standard set out in Ex parte

McLendon to modification actions arising from dependency actions that

have concluded with an award of legal and physical custody to a third-

party custodian does not serve the purposes of the AJJA. I question

whether the standard set out in Ex parte McLendon was intended to be

as insurmountable as it has become, especially in light of the fact that, in

cases involving dependency, we should have a preference at all times for

the preservation of the family. I believe that a better standard would be

one permitting juvenile courts considering modification of custody

judgments arising from dependency actions to eschew the presumption

that a change in custody is inherently disruptive and would instead

require the balancing of all of the factors at play, including any

disruption caused by the initial removal of the child, the bonds the child

has with both the natural parent and the custodian, any disruption that

may be caused by removal from the custody of the custodian, and the

benefits that may flow from the reunification of the natural family.

Fridy, J., concurs.

13