J.L. v. D.G.H., S.L.H., and Ja.L. (Appeal from Etowah Juvenile Court: JU-20-357.01).

Rel: April 26, 2024

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-2023-0616
________________________

J.L.

v.

D.G.H., S.L.H., and Ja.L.

Appeal from Etowah Juvenile Court
(JU-20-357.01)

PER CURIAM.

J.L. ("the father") appeals from a judgment entered by the Etowah

Juvenile Court ("the juvenile court") finding E.D.L. ("the child")

dependent and awarding custody of the child to S.L.H. ("the maternal

grandmother") and D.G.H. ("the maternal grandfather").

Procedural Background

The father married Ja.L. ("the mother") on September 25, 2009.

The father and the mother were divorced by a judgment entered by the
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Etowah Circuit Court on October 22, 2010, while the mother was

pregnant with the child. The divorce judgment, which ratified and

incorporated a settlement agreement entered between the father and the

mother, provided that the father and the mother would exercise joint

legal custody of the child; that the mother would exercise sole physical

custody of the child, subject to the father's reasonable visitation rights;

and that the father would pay $492 per month in support for the child.

The child was born on January 4, 2011. Pursuant to the divorce

judgment, the mother maintained sole physical custody of the child, with

the father visiting the child every other weekend. Over time, the mother

voluntarily allowed the maternal grandparents to exercise custody of the

child during her custodial periods. On November 27, 2018, the Etowah

Circuit Court modified the divorce judgment to award the father and the

mother joint custody of the child and to require the father and the mother

to exchange physical custody of the child on an alternating weekly basis.

Despite the entry of the modification judgment, the mother did not

exercise her custodial rights; the father alternated weekly custody of the

child with the maternal grandparents. After the summer of 2019, the

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father agreed to allow the child to reside with the maternal grandparents

and to visit with him every other weekend.

In September 2020, following reports that the mother and her

paramour had abused or neglected N.H. ("the child's half-sibling"), the

mother's other child, who was born in 2017, the Etowah County

Department of Human Resources ("DHR") implemented a safety plan to

protect the child. Believing that DHR would remove the child from their

home and place the child with the father, on October 21, 2020, the

maternal grandparents filed a dependency petition in the juvenile court,

and they obtained pendente lite custody of the child based on an ex parte

order. On December 4, 2020, the father filed an answer denying the

material allegations of the dependency petition and a counterclaim

seeking custody of the child; he also filed a motion for pendente lite

visitation with the child. The juvenile court granted the father's motion

for pendente lite visitation on January 11, 2021, allowing the father

unsupervised visitation with the child every other weekend.

On February 15, 2022, the juvenile court approved an agreement

between the father, the mother, and the maternal grandparents and

entered a pendente lite order incorporating that agreement. The

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pendente lite order, among other things, awarded the father and the

maternal grandparents joint legal custody of the child and joint physical

custody of the child "on a week on, week off basis"; required the father

and the maternal grandparents to ensure that the child, who was being

treated for symptoms associated with attention-deficit/hyperactivity

disorder ("ADHD"), took all his prescribed medications; and awarded the

mother visitation with the child to be supervised by the maternal

grandmother.

On January 12, 2023, the juvenile court commenced the trial of the

case, which was eventually completed on April 4, 2023. On August 2,

2023, the juvenile court entered a final judgment finding the child to be

dependent and awarding sole custody of the child to the maternal

grandparents, subject to specified visitation being awarded to the mother

and the father. The final judgment provides, in pertinent part:

" The ... child has resided primarily with the [maternal
grandparents] since 2015 and has formed an extremely strong
bond with [the maternal grandparents]. Testimony and
evidence was presented that between 2015-2022, the father
would visit the child every other weekend. That the mother
and father voluntarily allowed the ... child to reside with the
[maternal grandparents]. That the [maternal grandparents]
have been the primary contact with the child's school since he
has been in school. The child is now in 6th grade. That in
February 2022, on a temporary basis, the [maternal

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grandparents] and [the] father alternated week to week
[custody of] the minor child.

"That the ... child suffers from ADHD and is currently
prescribed medications to help control his ADHD. That there
was testimony and evidence presented wherein the father
fails and/or refuses to give the ... child his medication when in
the father's physical custody. There was testimony and
evidence presented that as a result of the father's failure to
administer the child's medication, the ... child has had
behavioral issues at school during the time he was in the
father's physical custody.

"There was testimony and evidence presented that
during the time the child was alternating week to week with
the [maternal grandparents] and the father, the ... child's
mental and emotional health declined. That the ... child's
licensed therapist, Erica Sewell, testified that it was her
professional opinion that the ... child's emotional and mental
health was concerning and it was her opinion it was as a
result of the parties' week on week off custodial periods along
with the father's failure to provide for the child's mental
health needs."1

1The juvenile court did not cite the mother's alleged abuse and
neglect as a factor in its dependency determination. The mother testified
that she had extricated herself from her abusive relationship with her
paramour and that she had adjusted her circumstances to meet the needs
of the child. The juvenile court evidently did not base its dependency
determination on the mother's past abusive and neglectful misconduct.
See D.O. v. Calhoun Cnty. Dep't of Hum. Res., 859 So. 2d 439, 444 (Ala.
Civ. App. 2003) (holding that the dependency of a child must be based on
current circumstances).
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On August 10, 2023, the father filed a timely postjudgment motion to

alter, amend, or vacate the final judgment, which was denied on August

22, 2023. The father timely appealed to this court on September 5, 2023.

Issues

In his brief on appeal, the father asserts that

"[t]he stated grounds relied upon [by] the [juvenile] court to
support its finding of dependency was based upon the fact that
the parents voluntarily allowed the child to live with the
maternal grandparents and that the father allegedly failed
and/or refused to give the child his ADHD medication when
in the father's physical custody. ... However, pursuant to Ala.
Code [1975,] § 12-15-102(8)[,] and established legal precedent,
these facts do not constitute a sufficient basis for the juvenile
court's determination of dependency ...."

The father's brief, p.17. The father contends that, although the mother

may have abandoned the child, he did not abandon the child or commit

any other abuse or neglect contributing to the dependency of the child.

The father maintains that he should not be legally responsible for the

mother's actions or omissions, in effect maintaining that the juvenile

court erred in finding the child dependent as to him.

Analysis

The father's argument proceeds from a faulty premise. Under

Alabama law, "dependency" refers to the status of a child who is "in

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need of care or supervision" because the child is not receiving adequate

care or supervision "from those persons legally obligated to care for

and/or to supervise the child." Ex parte L.E.O., 61 So. 3d 1042, 1047

(Ala. 2010) (emphasis in original). When the parents are joint

custodians of a child, both sharing equal legal responsibilities to

provide adequate care and supervision for the child, the failure or

refusal of one of the parents to properly discharge those responsibilities

renders the child dependent. See M.C.A. v. Etowah Cnty. Dep't of

Hum. Res., [Ms. CL-2023-0286, Jan. 31, 2024] ___ So. 3d ___ (Ala. Civ.

App. 2024). As a matter of Alabama law, a child can be deemed

dependent even when one parent is fit, willing, and able to care for the

child. See T.K. v. M.G., 82 So. 3d 1, 4 (Ala. Civ. App. 2011), overruled

on other grounds by Ex parte T.M., 358 So. 3d 1155 (Ala. Civ. App.

2022).

In this case, the mother gained sole custody of the child in the

divorce judgment. At first, the mother and the child resided with the

maternal grandparents, and the mother jointly cared for the child with

the maternal grandmother during her custodial periods. When the

child was two years old, the mother and the child moved out of the

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maternal grandparents' home, but she heavily relied on the maternal

grandparents to babysit the child, leaving the child with them for

increasing periods. Eventually, the mother decided to leave the child

with the maternal grandparents fulltime so that he could attend an

elementary school in the district in which they lived. The mother

testified that, when she left the child with the maternal grandparents,

she had intended for the child to be raised by them in her stead. The

mother visited with the child occasionally, but she did not provide

routine financial or emotional support for the child or perform regular

parental duties; instead, she left the maternal grandparents to meet

the child's basic needs without her involvement. In 2018, the mother

agreed to a modification of the divorce judgment, pursuant to which

she was awarded joint legal and joint physical custody of the child with

the father. The mother, however, never exercised her custodial rights;

rather, she informally delegated those rights to the maternal

grandparents.

A "dependent child" includes a child who "is in need of care or

supervision" and "[w]hose parent, legal guardian, legal custodian, or

other custodian has abandoned the child, as defined in subdivision (1)

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of [Ala. Code 1975, §] 12-15-301." Ala. Code 1975, § 12-15-102(8)a.5.

Section 12-15-301(1), Ala. Code 1975, defines "abandonment" as:

"A voluntary and intentional relinquishment of the custody of
a child by a parent, or a withholding from the child, without
good cause or excuse, by the parent, of his or her presence,
care, love, protection, maintenance, or the opportunity for the
display of filial affection, or the failure to claim the rights of a
parent, or failure to perform the duties of a parent."

Based on the undisputed evidence in the record, the mother abandoned

the child as a matter of law by voluntarily and intentionally relinquishing

her custody rights to the maternal grandparents. Her abandonment left

the child "in need of care or supervision," as our supreme court construed

that phrase in Ex parte L.E.O., because she was not personally providing

the child with care and supervision as required by the divorce judgment

and the 2018 modification judgment. Thus, the child was dependent,

regardless of whether the father's conduct also contributed to the

dependency of the child.

We need not delve into whether the father's acquiescence in

allowing the child to reside with the maternal grandparents can be

treated as a voluntary and intentional relinquishment of his custodial

rights, cf. Ragsdale v. Ragsdale, 991 So. 2d 770 (Ala. Civ. App. 2008)

(holding that father in that case, who had exercised his visitation and

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had paid child support, did not voluntarily forfeit his rights to child by

allowing grandparents to exercise mother's custodial rights), or whether

his failure to consistently provide the child with medication for his

ADHD-like symptoms independently rendered the child dependent, cf. In

re Jahzir Barbee M., 171 A.D.3d 1181, 1183, 99 N.Y.S.3d 91, 93 (N.Y.

App. Div. 2019) (reversing a finding that a child was neglected because

the evidence indicating that the mother had "delayed in scheduling an

independent neuropsychological evaluation of the child, and that the

child missed some doses of Adderall while he was staying at his father's

home" was insufficient to prove medical neglect). Because the child was

dependent based on the abandonment of the child by the mother, the

dependency adjudication must be affirmed.

The father insinuates that the juvenile court should have at least

returned the child to his joint custody as set forth in the modification

judgment. Even in cases in which a juvenile court finds that only one

parent's conduct led to the dependency of the child, the Alabama Juvenile

Justice Act ("the AJJA"), Ala. Code 1975, § 12-15-101 et seq., does not

specifically require that the other parent receive custody rights to the

child. The AJJA gives priority to "a willing, fit, and able relative ... over

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a non-relative," but the term "relative" does not include a parent, see Ala.

Code 1975, § 12-15-301(14) (defining "relative" to include "only a brother,

sister, uncle, aunt, first cousin, grandparent, great grandparent, great-

aunt, great-uncle, great great grandparent, niece, nephew, grandniece,

grandnephew, or a stepparent"). Furthermore, "[i]n the dispositional

phase of a dependency proceeding … the father of a child does not have

any presumptive right to custody of his child as against more distant

relatives." D.W. v. M.M., 272 So. 3d 1107, 1112 (Ala. Civ. App. 2018).

The AJJA authorizes a juvenile court to "[m]ake any [custodial] order as

the juvenile court in its discretion shall deem to be for the welfare and

best interests of the child." Ala. Code 1975, § 12-15-314(a)(4).

In this case, the juvenile court determined that it would be in the

best interests of the child for the maternal grandparents to obtain sole

custody and for the father to visit with the child every other weekend as

had been the custodial arrangement for most of the child's life. We review

the custodial disposition of a dependent child by a juvenile court solely to

determine whether the juvenile court abused its discretion. See Ex parte

Alabama Dep't of Hum. Res., 682 So. 2d 459 (Ala. 1996). We cannot say

based on this record that any abuse of discretion has occurred. The

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maternal grandparents have long provided the child satisfactory care as

his primary caregivers, and the juvenile court concluded that the father

was not as capable as the maternal grandparents of meeting the

emotional and mental-health needs of the child. The evidence is

sufficient to sustain a finding that it is in the best interests of the child

that he be placed in the sole custody of the maternal grandparents.

Conclusion

Based on the foregoing, we affirm the judgment of the juvenile court

finding the child dependent and awarding sole custody of the child to the

maternal grandparents.

AFFIRMED.

Hanson and Fridy, JJ., concur.

Moore, P.J., concurs specially, with opinion, which Edwards and

Lewis, JJ., join.

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MOORE, Presiding Judge, concurring specially.

In Ex parte L.E.O., 61 So. 3d 1042 (Ala. 2010), the supreme court

determined that a child was "in need of care or supervision" within the

definition of "dependent child" in Ala. Code 1975, § 12-15-102(8), when

the child has been abandoned by his or her parents and left in the custody

of persons without legal custodial rights to the child. In his dissent to

the main opinion in Ex parte L.E.O., Justice Murdock predicted that the

supreme court's decision would disrupt longstanding law recognizing

that a parent has a "natural and constitutionally protected right" to

delegate custody of his or her child to a grandparent. 61 So. 3d at 1050

(Murdock, J., dissenting). Justice Murdock reasoned that a child should

not be treated as a dependent child when a parent prudently places the

child with a grandparent who provides the child with adequate care and

supervision. 61 So. 3d at 1052-55. I agreed with Justice Murdock's

dissent then, see L.E.O. v. A.L., 61 So. 3d 1058, 1065 n.2 (Ala. Civ. App.

2010) (Moore, J., concurring specially) (opinion after remand), and G.H.

v. Cleburne Cnty. Dep't of Hum. Res., 62 So. 3d 540, 546 (Ala. Civ. App.

2010) (Moore, J., concurring in the result), and, seeing the fallout from

that opinion, I agree with it even more now.

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Ja.L. ("the mother") may have abandoned E.D.L. ("the child"), but

she did not leave the child without proper care and supervision when she

placed him in the care of the maternal grandparents. From the time the

child was born, the maternal grandparents have exhibited nothing but

love for the child. In addition to unwavering emotional support, they

have consistently provided the child with adequate protection, food,

shelter, clothing, medical care, educational care, and psychological care.

When the mother determined that she could not or would not be able to

parent the child, she made a prudent decision to delegate custody of the

child to the maternal grandparents, knowing that they had the means

and devotion to raise the child properly alongside the father. Her

decision did not leave the child in a dependent state, requiring the

intervention of the state to assure that the basic needs of the child were

being satisfied.

It is the public policy of this state to encourage extended families to

work together to provide for the safety and welfare of children. See K.C.

v. D.C., 891 So. 2d 346, 350 (Ala. Civ. App. 2004). Accordingly, the law

generally favors amicable custody arrangements between parents and

grandparents that inure to the benefit of a child. See M.D.K. v. V.M., 647

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So. 2d 764, 765 (Ala. Civ. App. 1994). A child being raised, either wholly

or in part, by a grandparent who provides the child adequate care and

supervision should not be considered a dependent child. See J.W. v.

N.K.M., 999 So. 2d 526, 540-44 (Ala. Civ. App. 2008) (Moore, J.,

dissenting). And a parent should not have to risk a child being declared

dependent by exercising his or her fundamental right to delegate the care

of the child to a grandparent. In appropriate circumstances, a parent

may voluntarily forfeit his or her custodial rights to a grandparent, see,

e.g., R.K. v. R.J., 843 So. 2d 774, 786 (Ala. Civ. App. 2002), but, as Justice

Murdock recognized in his dissent in Ex parte L.E.O., that does not

render a child dependent when the grandparent acts in loco parentis by

assuming the parental role and providing the appropriate care that the

child needs. 61 So. 3d at 1057 (Murdock, J., dissenting).

However, in Ex parte L.E.O., the supreme court decided that, when

"those persons legally obligated to care for and/or to supervise the child"

do not fulfill their obligations, the child is "in need of care or supervision."

61 So. 3d at 1047. As Justice Murdock pointed out in his dissent, that

means that, when a parent has abandoned his or her child and is no

longer personally providing the child with care and supervision, the child

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is automatically dependent regardless of whether the child has been

placed in the loving and proper care of fit grandparents. 61 So. 3d at

1057 (Murdock, J., dissenting). Pursuant to Ex parte L.E.O., in this case,

the child could be adjudicated to be a "dependent child" within the

meaning of Ala. Code 1975, § 12-15-102(8), not because he was actually

"in need of care or supervision" but because he was artificially "in need of

care or supervision" by the supreme court's definition.

Moreover, Ex parte L.E.O., as interpreted by this court, mandates

that a child be adjudicated dependent even if one of two joint custodial

parents can properly provide the child with care and supervision. See

M.C.A. v. Etowah Cnty. Dep't of Hum. Res., [Ms. CL-2023-0286, Jan. 31,

2024] ___ So. 3d ___ (Ala. Civ. App. 2024). Alabama now follows "the one-

parent doctrine," pursuant to which a juvenile court may find a child

dependent based on the acts or omissions of one parent even if the other

parent remains fit and willing to properly parent the child. See Vivek S.

Sankaran, Parens Patriae Run Amuck: The Child Welfare System's

Disregard for the Constitutional Rights of Nonoffending Parents, 82

Temp. L. Rev. 55, 70-77 (2009) (providing that a majority of the states

consider a child dependent when one custodial parent cannot or will not

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properly care for his or her child regardless of the nonoffending conduct

of the other parent). Under the one-parent doctrine, a juvenile court may

find a child dependent based on the acts or omissions of one custodial

parent and, unless a statute provides otherwise, award custody of the

child without affording the other parent any presumptive right to custody

of the child. See In re Sanders, 495 Mich. 394, 852 N.W.2d 524 (2014).

As the main opinion concludes, pursuant to § 12-15-314, the juvenile

court could properly award the custody of the child to the maternal

grandparents without regard for any parental presumption favoring the

father.

In In re Sanders, the Michigan Supreme Court held that the one-

parent doctrine "essentially imposes joint and several liability on both

parents, potentially divesting either of custody, on the basis of the

unfitness of one." 495 Mich. at 401, 852 N.W.2d at 527. The court

determined in that case that, when a juvenile court does deprive a

"nonoffending" parent of custody of a child based purely on its own

notions of the best interests of a child, a juvenile court violates the due

process of that parent. The court reasoned that a fit parent has a

fundamental right to the custody of his or her child that does not

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evaporate because the other parent has become unfit to care for the child

thereby rendering the child dependent. Thus, the court said, a juvenile

court should be required to apply a presumption in favor of awarding

custody to the nonoffending parent and a juvenile court may decline to

award custody to that parent only when the presumption has been

rebutted by clear and convincing evidence. The reasoning in In re

Sanders suggests that § 12-15-314 may be unconstitutional as applied to

a nonoffending parent.

That problem could be alleviated if the maternal grandparents'

claim could have been treated as a pure custody claim. Alabama law

affords a natural parent such a presumptive right to custody in third-

party custody disputes. See Ex parte Terry, 494 So. 2d 628 (Ala. 1986).

However, as Justice Murdock also explained in his dissent, by redefining

the phrase "in need of care or supervision" as it did, the main opinion in

Ex parte L.E.O. "blur[s], indeed largely remove[s], the line between true

dependency cases ... and mere third-party custody cases." 61 So. 3d at

1055 (Murdock, J., dissenting). According to Justice Murdock:

"Under the new rule announced today in the main opinion, it
now will be impossible to distinguish a [third-party custody]
case from a dependency case. Thus, a grandparent who has
been caring for a child for several years because a parent or

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the parents have placed the child with the grandparent to
raise, will now have to file a dependency proceeding in the
juvenile court, rather than a custody proceeding in the circuit
court, in order to obtain a custody award to be able to enroll
the child in school."

61 So. 3d at 1056 (emphasis added). The decision in Ex parte L.E.O.

forces grandparents into juvenile court by transforming a third-party

custody dispute into a dependency case when the voluntary

relinquishment of a child has been alleged. See R.J. v. J.N.M.W., 339 So.

3d 935, 840 (Ala. Civ. App. 2021).

Unfortunately, many Alabama children are dependent because

they need the care and supervision of the state. The limited jurisdiction

of the juvenile court should not be misdirected away from those children

toward resolving custody disputes between parents and grandparents

over a child who is receiving adequate care and supervision. Alabama's

appellate courts should do everything in their power to mark a clear line

between dependency cases and third-party custody cases instead of

blurring and eradicating that distinction to enlarge the jurisdiction of

juvenile courts. I maintain that Ex parte L.E.O. was wrongly decided

and should be overruled by the supreme court. If not, the Alabama

legislature should consider rewriting the dependency laws to rectify the

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problems created by that opinion. In the meantime, the Court of Civil

Appeals is constrained to follow the holding in Ex parte L.E.O., see Ala.

Code 1975, § 12-3-16, so I am compelled to concur with the main opinion.

Edwards and Lewis, JJ., concur.

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