REL: 09/19/2014




Notice: This opinion is subject to formal revision before publication in the advance
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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1130573
                             ____________________

                         Ex parte S.L.M. and R.S.M.

                     PETITION FOR WRIT OF CERTIORARI
                      TO THE COURT OF CIVIL APPEALS

                         (In re: S.L.M. and R.S.M.

                                           v.

                                        S.C.)

    (Etowah Juvenile Court, JU-11-120.02 and JU-11-487.02;
               Court of Civil Appeals, 2120004)



STUART, Justice.
1130573

    This Court issued a writ of certiorari to determine,

among other issues, whether the decision of the Court of Civil

Appeals on return to remand, determining that sufficient

evidence   was   presented   to   support   the   juvenile   court's

decision to modify custody, conflicts with Ex parte McLendon,

455 So. 2d 863 (Ala. 1984).1      We reverse the judgment of the

Court of Civil Appeals and render a judgment for S.L.M. and

R.S.M.

                              Facts

    S.C., the maternal grandmother, petitioned the Etowah

Juvenile Court to intervene and to grant her custody of

S.D.A., who was 19 months old at the time of trial, and

R.D.A., who was 9 months old at the time of trial, both of

whom were in the custody of S.L.M. and R.S.M. (S.D.A. and


    1
     This case presents a procedural quagmire and involves
questionable decisions by both the juvenile court and the
Court of Civil Appeals. Given the posture of this case and
the importance of minimizing disruption in custody and
promoting stability of custody in this case, this Court
addresses this determinative substantive issue and pretermits
the consideration of other issues. Our refusal to address the
other issues, however, should not be understood as an approval
of all the language, reasons, or statements of law in the
Court of Civil Appeals' opinions relating to those other
issues or in the juvenile court's orders. Cf. Horsley v.
Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).


                                  2
1130573

R.D.A.    are    hereinafter     referred     to    collectively     as    "the

children").2          S.L.M.   and   R.S.M.   are    not   related    to    the

children.       In the petitions, the grandmother alleged that the

children were dependent as to the mother and the biological

father, that S.L.M. may have been awarded temporary custody of

the children, and that it would be in the best interest of the

children for the children to be placed in her custody.

    At trial, the maternal grandmother testified that she

lived in Kentucky, that she and the children's mother were

estranged, that she had custody of the mother's oldest child,

and that she had been unaware of the births of the children.

She explained that, when she learned about the children, she

contacted       the   Department     of    Human    Resources,   requesting

information about and custody of the children.               She testified

that she was physically and financially able to take care of

all three children and that she wanted them to grow up as a

family.    The maternal grandmother admitted that she had never

met the children and that the oldest child had only seen

photographs of the children.


    2
     Specifically, S.L.M. had been awarded "temporary legal
custody" of S.D.A., and S.L.M. and R.S.M. had been awarded
custody of R.D.A.
                                       3
1130573

    S.L.M. testified that, although she was not a blood

relative of the mother, she had known the mother for over 20

years and considered the mother a "sister."             She explained:

    "We are –- I love [the mother] like a sister, and
    she loves me. I have been the only person there for
    [the mother]. [The mother] is a struggling drug
    addict that needs help, and I have been the only one
    there. But no, we are not related."

    With regard to her relationship with the children, S.L.M.

testified    that the   children       had   lived   with   her   and   her

husband, R.S.M., since their respective births. She explained

that she brought each child to her home from the hospital

because of the mother's drug-addiction problems.                   S.L.M.

testified:

    "I love them like they are my own. I have cared for
    the children since day one.       I stayed in the
    Birmingham hospital with [the youngest child] for
    five weeks because she was born premature in a motel
    room and almost died. None of [the mother's] family
    ... could even call me and ask if that baby was
    alive or dead. I was the only one there for that
    baby, the only one. I have had the babies since day
    one. I have been the only one there for them, and
    I love them. I love them like they are my own."

She stated that R.S.M. is a good father and that their

daughter loves the children. When asked how often the mother

visits with the children, S.L.M. replied, "sometimes a week,

sometime a couple of weeks.            It just depends on how [the

                                   4
1130573

mother] is to tell you the truth."            She stated that she

allowed the mother to visit with the children if the mother

was "straight."

      R.S.M. testified that he shares custody of the children

with S.L.M., his wife of 13 years.         He stated that he loved

the children like his own daughter and that he willingly

provided for them, carried them to doctor's appointments, and

used his income to support them.

      The mother testified that she wanted S.L.M. to have

custody of her children.     She elaborated about the children's

lives with S.L.M., stating:

      "[W]hen I went to church with the kids –- they are
      going to church. They are living a very Christian
      life. The kids are done very fairly. I mean, they
      have got all the toys in the world you can dream of.
      I mean, they are spoiled. I mean, I will give you
      that. They are spoiled. And they are really over
      loved.   They are.   I mean, there is so much love
      around them."

The   mother   admitted   that   the   maternal   grandmother   could

provide adequately for the children but maintained that she

wanted the children to remain with S.L.M. and R.S.M. so that

she could continue to have a relationship with the children.

      The following testimony was developed with regard to the

mother's visitation and relationship with the children:

                                  5
1130573

    "[THE COURT]: How often do you see the two children
    here?

    "[The mother]: Well, up until I had left[3] I was
    getting to see them once a week to once every two
    weeks, depending upon their schedule.

    "[THE COURT]: How often would you see them when you
    would see them?

    "[The mother]: A couple of hours a day. The longest
    –- what was it, nine hours I got? And then I spent
    the night, spent the night on several occasions.
    And then the girls, they spent the night with me.

         "Remember, you came over to the motel and you
    stayed the night with me when [my boyfriend] was at
    work.

    "[S.L.M.]: We stayed until late but we never stayed
    all night.

    "[The mother]: I'm sorry.        That's my mistake.

    "....

    "[THE COURT]: Tell me more about the night that you
    –- the children were there late at the motel. Where
    was that at?

    "[The mother]: That's when I was –- that's when I
    was over there at Super 8 [motel].

    "[THE COURT]: How long has that been?

    "[The mother]: It ain't been long.       Probably weeks.

    "[THE COURT]: Recently?



    3
        The mother moved to Arizona to find temporary employment.
                                 6
1130573

    "[The mother]: Yeah, recently.

    "[THE COURT]: And that's the time you were doing
    drugs from what you testified a while ago. Were you
    not on drugs?

    "[The mother]: I had one relapse about two months
    ago.   It may have been three.  I'm guessing two.
    I'm having to guess here.

    "[THE COURT]: You were saying it was two months ago
    that this happened. So this was the time --

    "[S.L.M.]: It was before her relapse. Like a week
    later I called her to tell her we were going to come
    back over and let her see the kids, and she told me
    she relapsed, and I didn't go back.

    "[The mother]: Anytime I have relapsed I have been
    honest with her.   Anytime I have relapsed I have
    been honest with her.

    "....

    "[THE COURT]: If I decided that I don't want you
    around the kids based on the fact of your drug usage
    and entered an order that [S.L.M.] could not let you
    see the children, what would that do to you and
    placement?    Would that affect it?      I'm really
    concerned about you being around the kids with drug
    use. I'm just curious. Would that change in your
    mind –- is the fact that [S.L.M.] gives you access
    to the children --

    "[The mother]: She doesn't let me be around them
    when I'm using, no. I have always been honest with
    her.   I know she is probably mad at me right now
    knowing that I have. But I have always been honest
    with her.

    "....


                             7
1130573

    "[THE COURT]: Has [the mother] ever been with the
    children alone since you have had them?

    "[S.L.M.]: Never, ever.

    "[THE COURT]: So a while ago when she testified she
    had them one night by herself in a motel, that never
    happened?

    "[S.L.M.]: No sir. That was the night I was there.
    We stayed until about 11:00 o'clock that night. We
    took her out to eat at Pizza Hut.    He dropped us
    off, and he come back at 11:00 o'clock at night to
    pick us up.    She has never been one minute by
    herself with those children ever, never."

    In closing, the maternal grandmother's counsel argued

that the children should be placed with a relative and that,

because the children's half sister was in the custody of the

maternal grandmother, the children should be placed in the

custody of the maternal grandmother and be united with their

half sister.

    After   considering   the    evidence,    the    juvenile    court

entered   orders   awarding   custody   of   the    children    to   the

maternal grandmother.     After S.L.M. and R.S.M.'s posttrial

motions were denied, they appealed the judgment to the Court

of Civil Appeals.

    The Court of Civil Appeals, after reviewing the record,

remanded the cases to the juvenile court to make written


                                 8
1130573

findings of fact to support its judgments.             S.L.M. v. S.C.,

[Ms. 2120004, April 12, 2013] ___ So. 3d ___, ___ (Ala. Civ.

App. 2013).     On remand, the juvenile court entered identical

orders    as   to   each   child   explaining   the   reasons   for   its

decision to modify custody with regard to each child, stating:

         "3. This Court heard evidence at [a] hearing
    addressing [the maternal grandmother's] petition for
    custody.   The evidence heard included all events
    from the birth of both children to present.      The
    [maternal grandmother] provided testimony that she
    is a fit and proper person to have the care, custody
    and control of her granddaughter.      She also has
    custody of the minor child's older half sibling.

         "4. At the hearing, the mother of the minor
    child testified that the present custodians let her
    have overnight visits with the minor child.      The
    mother also testified that she was still using drugs
    and still had a problem with them.         She also
    testified that she did not want her mother to have
    custody of the minor child because she would hold
    her accountable for using drugs and restrict her
    visits with the minor child if the mother was using
    drugs, but the present custodian understood her drug
    use even though it would make her mad. The Court
    was greatly disturbed by this, and concerned that
    the minor child was being exposed to the situation
    which removed her from her natural mother in the
    first place. It was clear and convincing evidence
    from the testimony of all the parties, that the
    [maternal grandmother] limits the contact between
    the mother and the older half sibling but that the
    present custodians of the minor child [do] not.

           "....



                                     9
1130573

         "Based on the evidence, the Court finds that
    there has been a material change in circumstances in
    this case and that the positive good brought about
    by the modification would more than offset the
    inherently disruptive effect caused by uprooting the
    child. The child is young and the court finds that
    the young child will adapt to the circumstances.
    She would be living with a loving grandmother, with
    her other siblings.

         "This Court finds that the positive good brought
    by the change of custody would offset any disruption
    that might be caused. By granting custody of the
    child to the [maternal grandmother], all of the
    children would be together, and be protected from
    their mother who admitted to still using drugs."

On return to remand, the Court of Civil Appeals affirmed the

juvenile court's judgments.      S.L.M. v. S.C., [Ms. 2120004,

October 4, 2013] ___ So. 3d ___ (Ala. Civ. App. 2013)(opinion

on return to remand).

                        Standard of Review

         "'On certiorari review, this Court accords no
    presumption of correctness to the legal conclusions
    of the intermediate appellate court. Therefore, we
    must apply de novo the standard of review that was
    applicable in the Court of Civil Appeals.'"

Ex parte Helms, 873 So. 2d 1139, 1143 (Ala. 2003)(quoting Ex

parte Toyota Motor Corp., 684 So. 2d 132, 135 (Ala. 1996)).

                            Discussion

    S.L.M. and R.S.M. contend that the Court of Civil Appeals

erred in affirming the juvenile court's judgments holding

                                10
1130573

that the maternal grandmother presented sufficient evidence to

modify custody of the children.

    After a juvenile court has placed a dependent child into

the custody of a proper caregiver, consideration of a change

of custody is conducted pursuant to the standard set forth in

Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). See Ex parte

J.P., 641 So. 2d 276, 278 (Ala. 1994)(applying the McLendon

standard in a custody dispute between two sets of relatives

when one set of relatives had been awarded custody under a

prior judicial order).   In Ex parte Cleghorn, 993 So. 2d 462,

466–68 (Ala. 2008), this Court stated:

    "In Ex parte McLendon, we held that the trial court
    cannot order a change of custody '"unless [the party
    seeking the change of custody] can show that a
    change of the custody will materially promote [the]
    child's welfare."'    455 So. 2d at 865 (quoting
    Greene v. Greene, 249 Ala. 155, 157, 30 So. 2d 444,
    445 (1947)).   We noted in Ex parte McLendon that
    '[i]t is important that [the party seeking the
    change in custody] show that the child's interests
    are promoted by the change, i.e., that [the party
    seeking the change in custody] produce evidence to
    overcome the "inherently disruptive effect caused by
    uprooting the child."' 455 So. 2d at 866. ...

          "....

         "Our decision in Ex parte McLendon provides that
    a party seeking a change in custody must show that
    the change 'will materially promote [the] child's
    welfare.' 455 So. 2d at 865. The McLendon standard

                              11
1130573

    is a 'rule of repose,' meant to minimize disruptive
    changes of custody because this Court presumes that
    stability is inherently more beneficial to a child
    than disruption. Ex parte McLendon, 455 So. 2d at
    865. It is founded on the longstanding principle
    that '[i]t is the court's duty to scrupulously guard
    and protect the interests of children. And in the
    context of child-custody proceedings, the dominant
    consideration is always the best interest of the
    child.' Ex parte Fann, 810 So. 2d 631, 638 (Ala.
    2001). See also McCartney v. McCartney, 11 So. 3d
    213, 220-21 (Ala. Civ. App. 2007)('"The controlling
    consideration in child-custody matters is always the
    best interests of the child."' (quoting Patrick v.
    Williams, 952 So. 2d 1131, 1140 (Ala. Civ. App.
    2006)))."

    Here, the evidence is not sufficient to satisfy the

McLendon standard, and it does not support a finding that the

children's best interest would be served by modifying custody

and removing the children from S.L.M. and R.S.M.'s home.         The

children have lived in the Gadsden area and have been with

S.L.M   and   R.S.M.   since   their   births.   R.D.A.   was   born

premature and struggled to survive.          S.L.M. cared for her

throughout her five-week hospitalization and has continued,

along with R.S.M., to tend to her medical needs. The evidence

indicates that the children's physical and financial needs are

met and that they are well loved.        The maternal grandmother

testified that she wanted custody of the children because they

were blood relatives and because she wanted to unite them with

                                 12
1130573

their   half    sister.      The   maternal         grandmother,    however,

admitted that she had never seen the children and that,

although the older half sister of the children had seen

photographs of the children, she also had never met them. The

evidence simply does not support a finding that the benefits

of relocating the children with the maternal grandmother would

materially promote the best interest of the children and more

than offset the disruptive effect of a change of custody.

Instead,   the   record     supports        the   need    to   "preserve   the

stability of these young children by keeping them in an

indisputably suitable home with two undeniably commendable and

caring custodians instead of uprooting them to live with

complete strangers, although ones related by blood, in an

unknown environment."       S.L.M. v. S.C., [Ms. 2120004, Feb. 14,

2014]   ___    So.   3d   ___,   ___    (Ala.      Civ.   App.   2013)(order

overruling       application           for        rehearing)(Moore,        J.,

dissenting)(footnote omitted).

    This Court is mindful of the juvenile court's concern

that the children in S.L.M. and R.S.M.'s custody may be

exposed to the situation that caused them to be removed from

the mother in the first place.              However, the evidence was not


                                       13
1130573

clear and convincing that the children had indeed been exposed

to the mother's drug use; rather, the testimony established

clearly and convincingly that, although S.L.M. "understands"

the mother's drug use, she does not allow the children to be

around the mother when the mother is using drugs.

    "'A custody determination of the [juvenile] court
    entered   upon   oral   testimony   is  accorded   a
    presumption of correctness on appeal, Payne v.
    Payne, 550 SO. 2d 440 (Ala. Civ. App. 1989), and
    Vail v. Vail, 532 So. 2d 639 (Ala. Civ. App. 1988),
    and we will not reverse unless the evidence so fails
    to support the determination that it is plainly and
    palpably wrong.'"

Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994)(quoting

Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App.

1993)). Here, the evidence does not support a modification of

custody.     Nothing in the record supports the conclusion that

modifying custody and removing the children from the home of

S.L.M. and R.S.M. would materially promote the children's best

interest;      therefore,   granting       the   maternal     grandmother

custody of the children is plainly and palpably wrong.

                                Conclusion

    Based on the foregoing, the judgment of the Court of

Civil     Appeals   affirming    the     juvenile   court's    erroneous



                                    14
1130573

judgment is reversed, and a judgment is rendered for S.L.M.

and R.S.M.

    REVERSED AND JUDGMENT RENDERED.

    Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.

    Murdock, J., concurs in the result.

    Moore, C.J., dissents.




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