M.H. v. B. F. and Lee County Department of Human Resources

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REL: 06/10/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2010-2011 2100116 M.H. v. B.F. and Lee County Department o f Human Resources Appeal from Lee J u v e n i l e Court (JU-10-225.01; JU-10-226.01; JU-10-227.01; JU-10-228.01; and JU-10-229.01) MOORE, Judge. M.H. ("the mother") Juvenile Court physical custody appeals ("the j u v e n i l e from a judgment court") o f V . F . (a d a u g h t e r awarding born o f t h e Lee legal and on J a n u a r y 1 6 , 2100116 1 9 9 6 ) , R . F . ( a s o n b o r n o n J a n u a r y 4, 1 9 9 8 ) , A . F . ( a s o n b o r n o n N o v e m b e r 9, 1 9 9 9 ) , and F . F . (a d a u g h t e r "the children") reverse L . F . (a s o n b o r n born on March to their father, On May Resources alleging 7, ("DHR") that B.F. filed should l i v e welfare speak with "has children] exhibited that, with the children other because been as t o w i t h i nactions do n o t have DHR a l s o schools and record irrational assessment." as t o L.F., had o f Human the juvenile court t h e mother involved i n a More with affecting children] a stable alleged that a video behaviors back and and "the mother to t h e mother a n d may specifically, healthy recorder them" a n d t h a t t h e mother had r e f u s e d 2 whom t h e c h i l d r e n adversely by " p u l l i n g [the as a r e s u l t . " health Department had r e c e n t l y separated and that the disagreed to the [children's] mental who a n d were e n g a g i n g and [ t h e environment Background petitions ("the f a t h e r " ) , children's went (collectively, We a f f i r m i n p a r t a n d t h e c h i l d r e n were dependent mother and t h e f a t h e r forth B.F. 2010, t h e Lee County r e l a t i o n s h i p f o r 17 y e a r s , the 14, 2003) i n part. Procedural and on J a n u a r y 27, 2001), DHR t o provide need a alleged the father 2100116 with the child's child's asthma May entered 25, a 2010, pendente temporary after lite custody of visitation, August 2010. 20, f o r the submitted The mother's also that the juvenile October 20, led to the should The in the mother only hearing final court appointed the counsel be for a guardian the mother to submit scheduled ad to 5, 2010, of the trial date, because the mother objected, required juvenile 2010, to court f a t h e r to submit court's continuance the court a the had court-ordered p s y c h o l o g i c a l assessment. appointment 15, a juvenile children allowing ordered 2010, appointed October new and the the scheduling juvenile to the evaluation. ordered placing ad l i t e m sought a c o n t i n u a n c e not On had assessment. August guardian hearing, father, and children psychological On The a order the supervised father which hospitalization. On litem medication, undergo continued made contract the with mother's c a s e ; on that the a psychological the trial and to a p s y c h o l o g i c a l assessment. t h e m o t h e r was was asserting a p p o i n t e d new because of appointed new in attorneys. counsel t h a t same d a t e , 3 changes counsel; requested the mother's the On a new 2100116 counsel f i l e d her granted the mother's abeyance her the at f i r s t discovery request. request juvenile court the time On hearing, the continue. after the 2010, the court reviewing was juvenile court, O c t o b e r 21, judgment f i n d i n g c h i l d r e n to the the support, allowing ordering DHR to the DHR's d i s c o v e r y The the c a u s e was ore tenus mother supervise the following. final motion case to and, indicated the its final custody mother t o pay supervised the Factual the t r i e d before awarding on the the and purpose of children. O c t o b e r 27, of child visitation, for n o t i c e of appeal e s t a b l i s h e d the hearing; evidence. mother t i m e l y f i l e d her 20, for juvenile court entered father, ordering October in considered responses, f o r t h e mother and the final held objection to that r u l i n g implementing counseling At i t mother's c h i l d r e n dependent, the the scheduled denied received 2010, but m o t i o n w o u l d be date ready to proceed. which of juvenile court trial. m o t h e r r a i s e d no t h a t she the that for juvenile The briefly On noted 20, request, for a continuance scheduled October discovery The The 2010. Background 2010, hearing, the evidence F a r r e l l Seymore, the p r i n c i p a l 4 at 2100116 Opelika Middle School, testified the s p r i n g o f 2010, b o t h the school and sought Seymore testified because t h e mother A.F. and regarding R.F. t h a t , on one o c c a s i o n t h e mother and t h e f a t h e r a r r i v e d a t t o c h e c k A . F . a n d R.F. o u t o f s c h o o l . that the school leave A . F . a n d R.F. Based the indicated that o f them. upon allowed the c h i l d r e n t o decide they chose t o leave w i t h both A . F . a n d R.F. w e r e other complaints Sherrioda dispute the father. A/B Heard, School System, V.F. and F.F. i n A p r i l 1 testified they held would Seymore leave; testified and t h a t , other the school than h a d no f o r the Opelika she had had contact 2010 b e c a u s e that them. counselor that parents DHR, Seymore whom paperwork from custody, regarding the school City both whom students regarding or concerns school's instructions with how t o p r o c e e d disputing with and custody parents' was u n s u r e and t h e f a t h e r were should their during they were with frequently c o m i n g t o s c h o o l l a t e a n d w e r e l e a v i n g s c h o o l e a r l y a n d i t was beginning o f them. to affect t h e academic performance Heard t e s t i f i e d without o f a t l e a s t one o b j e c t i o n t h a t she had heard I t was u n c l e a r f r o m S e y m o r e ' s t e s t i m o n y w h e t h e r he o r a n o t h e r r e p r e s e n t a t i v e o f t h e s c h o o l h a d s p o k e n w i t h DHR. 1 5 2100116 from others video that the mother had camera, which Heard, however, learned by she had the had not end of temporary w o u l d be t r a n s f e r r i n g to Britney involved report i n the that and i t was school of to the be indicated." however, parents in an of their DHR Heard that first 2010 had they because two of a male that During and that that t o DHR reported c o u l d not of the indicated." them became substantiate not that they did substantiate not those claims s u b s e q u e n t l y were I t was during the pendency of t h a t i n v e s t i g a t i o n , f o u n d t o be Seymore contacted DHR and reported frequently checking A.F. and R.F. a t t e m p t t o k e e p them away f r o m t h e petitions F.F.; father and a those that were March c h i l d r e n had w a n t t o r e t u r n home t o h e r . and the worker, could p h y s i c a l l y abused and F.F. "not the reports, and or t o W a r e , DHR some o f had that sexually abusing investigation, mother V.F. with incident. year assessment was school school. i n February found that V.F. another DHR father c h i l d r e n ; according report a case the witnessed custody Ware, the used to videotape the received a r r i v e d at ongoing custody dispute. regarding a l l the DHR children. 6 other then out "not that of school p a r e n t as filed the part dependency 2100116 Ware testified children, that she had learned refused testified to stay one of the L.F., had been h o s p i t a l i z e d as a r e s u l t o f a severe asthma a t t a c k ; t h e f a t h e r had r e p o r t e d had that t o provide t o Ware t h a t t h e m o t h e r L.F.'s asthma m e d i c a t i o n s t o him. that the c h i l d r e n had i n d i c a t e d t o her a with reported the f a t h e r ; according that t h e mother Ware preference t o Ware, t h e c h i l d r e n h a d regularly beat them with a metal b a t o n a n d made t h e m b a t h e i m m e d i a t e l y u p o n e n t e r i n g t h e h o u s e . Ware also might testified be e m o t i o n a l l y messages o n DHR's appeared overly that DHR was unstable answering focused on concerned because machine that t h e mother she had l e f t and, according the father rather hostile t o Ware, than on t h e check DHR h a d children. Ware offered obtained Both for the r e s u l t s of a background on t h e f a t h e r a n d h i s new had c r i m i n a l backgrounds, recent narcotic recommendation testified concerns that, use. regarding f o rthe safety DHR's f i l e but both Ware paramour, had tested indicated placement i f the father live-in that negative DHR h a d no of the children. received custody, M.H. DHR Ware h a d no o f t h e c h i l d r e n a n d recommended t h a t on t h e f a m i l y be c l o s e d . 7 Ware t e s t i f i e d , however, 2100116 that i f t h e mother r e c e i v e d juvenile court counseling family testified the accusations counseling t h a t , although father against of and the mother. t h e mother coaching the individual Ware repeatedly children h e r , L.F. had r e p o r t e d u r g e d L . F . t o l i e t o DHR r e g a r d i n g by recommended t h a t t h e f o r the mother. Ware accused order c u s t o d y , DHR to had make t h a t t h e mother had the type of d i s c i p l i n e acknowledged t h a t , although used the father had b e e n o r d e r e d t o s u b m i t t o a p s y c h o l o g i c a l e x a m i n a t i o n , he had n o t done s o . Ware a d m i t t e d t h a t against t h e mother had f i l e d t h e f a t h e r stemming from a d o m e s t i c - v i o l e n c e occurring on understood that April those 29, 2010, charges a d m i t t e d on c r o s s - e x a m i n a t i o n but, Ware focused she "thrown o u t . " had been Ware t h a t t h e mother c o u l d be f o c u s e d to the father's been r e l a t i o n s h i p o f f a n d on years; a in a he l a t e r longer rather than simply on t h e f a t h e r . According had incident testified, on t h e f a t h e r ' s t e n d e n c y t o a c t v i o l e n t l y , being c r i m i n a l charges period admitted but that that testimony, their their 8 he and t h e mother f o r approximately 12 r e l a t i o n s h i p had spanned actual time together had 2100116 totaled mother o n l y 12 y e a r s . had never sporadically. father of paternity to married but that they had l i v e d The f a t h e r t e s t i f i e d t h a t , the children's The f a t h e r t e s t i f i e d t h a t he a n d t h e five birth approximately and certificates, or child the father, children support no had ever he a n d t h e m o t h e r five years had before together a l t h o u g h he was t h e been court been named on t h e order regarding entered. According had separated " f o r good" the f i n a l hearing. When t h e f a t h e r h a d l e f t t h e f a m i l y home, a l l t h e c h i l d r e n h a d r e m a i n e d with the mother. The father t e s t i f i e d that, i n October 2009, the children had t e l e p h o n e d h i m s t a t i n g t h a t t h e mother h a d l e f t them for two d a y s . mother's took them regarding of home According a n d , upon with him. custody the children to the father, finding After he drove alone to the the children unsupervised, he a n d t h e m o t h e r had a dispute of the children, the father returned three t o t h e m o t h e r , b u t he k e p t R . F . a n d A . F . w i t h him. The after barely father he testified returned walk; that the f i r s t h e r t o t h e mother's V.F. r e p o r t e d that 9 time he custody, t h e mother saw V . F . she could had beaten h e r . 2100116 After examining testified the V.F., t h e f a t h e r t h a t , from t h a t p o i n t children out of school contacted forward, before DHR. The father he a t t e m p t e d t o c h e c k t h e mother could get to t h e m ; t h e f a t h e r s t a t e d : " I knew t h a t t h e y h a d t o l d on h e r a n d t h e y was s c a r e d . " not like the schools withdrew school had The f a t h e r t e s t i f i e d them t h e y were approximately father testified those visits visits that that one week because together at that before t h e mother i n 1993 a n d t h a t children separated. visitation made t h e c h i l d r e n f e e l J u n e 2 0 0 9 , when so he the end of the Although t h e mother with said time, the children, the things to continue during those uncomfortable. t h a t she and t h e f a t h e r began they had continued she h a d moved o u t . had remained w i t h According the children d i d t h e c h i l d r e n d i d n o t want The m o t h e r t e s t i f i e d the attending y e a r and e n r o l l e d them e l s e w h e r e . been awarded s u p e r v i s e d until that h e r when living living together She t e s t i f i e d she and t h e that father t o t h e m o t h e r , on December 12, 2009, t h e f a t h e r became e n r a g e d b e c a u s e he b e l i e v e d t h a t L . F . ' s h a i r h a d been c u t by a n o t h e r man; t h e mother t e s t i f i e d "stabbed mother, the tires out" of her vehicle. she had t a k e n a taxi t o b u y some 10 that the father According to the " F i x - a - F l a t " and, 2100116 while her s h e was g o n e , t h e f a t h e r h a d t a k e n a l l t h e c h i l d r e n f r o m home. The mother subsequently had returned but mother expressed they testified a preference should counseling had three return that, her i f necessary. the father the father. even though t h e c h i l d r e n had to stay to that of the children t o her custody t h a t A.F. a n d R.F. h a d r e m a i n e d w i t h The the acknowledged with the father, home. She she b e l i e v e d agreed The mother t e s t i f i e d to that, attend although f a t h e r had been a b u s i v e t h r o u g h o u t t h e i r r e l a t i o n s h i p , she not filed testified working mother that, with had occurred that children. father's denied rather than to various denied filing him until charges, that she made the she she had begun center. The incidents intervention domestic-violence 2005; that the father. report to DHR t h e f a t h e r was s e x u a l l y a b u s i n g t w o o f t h e m a l e According current the against throughout her r e l a t i o n s h i p with mother alleging charges a domestic-violence testified The any to girlfriend father's t h e mother, the daughter h a d made t h a t version of events h o s p i t a l i z a t i o n and h i s asthma m e d i c a t i o n . 11 report. The mother regarding She a l s o of the L.F.'s testified 2100116 that she never L.F. had been h o s p i t a l i z e d . The mother beaten received denied them w i t h used a metal a the a baton; the c h i l d r e n had The was mother preventing and that, the as the she as to have a r e l a t i o n s h i p w i t h if children that a they should neutral D.F., the the be the she had long, as her a paddle mother a l s o that and to i n f o s t e r care denied She father she her would testified her, so the contacting custody, them. in schools. believed returned mother's o l d e s t testified children hands of the had be that she be that believed t h e y c o u l d be in environment. his brothers t h a t he not placed time of the h e a r i n g child, that could had their t h e y were i n h i s unable the she The c h i l d r e n from seeing long that that inches children. that her testified mother 18 informing reports been unhappy at testified the call children's spoon, measuring an a t t e m p t t o d i s c i p l i n e that telephone had that and told and he child, was i s not who who the father's had come to sisters were safe. him s t o r i e s of m o t h e r , w h i c h he s a i d he the 20 years o l d to According believed. He ensure to abuse b e e n r e m o v e d f r o m h i s m o t h e r ' s home a s 12 biological hearing physical at D.F., at the testified a minor and 2100116 had been placed in foster care e m o t i o n a l abuse by t h e m o t h e r . a child that had and an i n c i d e n t He d e s c r i b e d physical that when receiving s t i t c h e s a f t e r the mother h i t him i n the head D.F. was of occurred a high-heeled he because resulted in his shoe. testified that home t w o y e a r s b e f o r e he had l a s t the f i n a l stayed hearing, i n the mother's f o r approximately week; D.F. a c k n o w l e d g e d t h a t he a n d t h e m o t h e r h a d n o t on good mother terms. needed younger, i n any The October D.F. testified counseling. the father D.F. t e s t i f i e d him with that that he According had served believed t o D.F., as a p a r e n t a l the he figure the f a t h e r had never abused or parted that when was t o him; mistreated way. mother's 15, assessment, written 2010, was psychological admitted the psychologist into identified assessment, evidence. the mother dated In as that having a l a r g e number o f a n t i s o c i a l p e r s o n a l i t y c h a r a c t e r i s t i c s . psychologist, genuinely a however, desire recommended t h a t to noted parent that her the mother a t t e n d 13 the mother children; parenting the seemed The to psychologist c l a s s e s , b u t she 2100116 stated that visitation The she with found the no letters addressed to expressed that also court. they u s e d a m e t a l b a t o n and the disciplining ribbons and them bathe The mother's by evidence the letters, mother but fists, the that and she the sink and children frequently busted them f o r s u c h " i n f r a c t i o n s " as touching without children m e t a l spoon t o b e a t them and inadvertently t h e i r hands. into those slammed" them, h i t them w i t h h e r while the supervised. written In loved require admitted allegedly the to c h i l d r e n t o be j u v e n i l e court objection reason had "body their lips losing hair while washing c h i l d r e n a l s o i n d i c a t e d t h a t t h e m o t h e r made immediately upon entering the house. c h i l d r e n i n d i c a t e d t h a t they wished to remain w i t h the A l l the father. Analysis The mother first argues that subject-matter jurisdiction. maintains the that case between t h e mother and actually adjudicated w h i c h i t had t h a t DHR no d i d not the Specifically, involved only the f a t h e r and a pure custody a u t h o r i t y to do. present j u v e n i l e court c l e a r and 14 a the custody mother dispute t h a t the j u v e n i l e dispute The lacked court between parents, mother f u r t h e r contends convincing evidence of the 2100116 dependency of the c h i l d r e n . We consider those two issues together. The case j u v e n i l e court based first on d e p e n d e n c y obtained jurisdiction petitions filed b y DHR. over the I n those p e t i t i o n s , DHR e s s e n t i a l l y a l l e g e d t h a t n e i t h e r t h e f a t h e r n o r t h e m o t h e r was c a p a b l e o f p r o p e r l y that the children specific clearly other needed allegations set forth a the protection i n DHR's claim than the parents, c a r i n g f o r t h e c h i l d r e n and of the state. petitions, by a t h i r d outlined party, i.e.,a a l s o § 1 2 - 1 5 - 1 0 2 ( 8 ) a . 6 . & 8. ( d e f i n i n g " d e p e n d e n t At that dispute the case between dependency party d i d not involve parents," jurisdiction which See ( A l a . C i v . App. 2010); see point, above, t h a t t h e c h i l d r e n were dependent. B.R.G. v . G.L.M., 57 S o . 3 d 1 3 7 , 1 4 0 - 4 1 The merely would fall of the juvenile court. child"). "a custody outside See § the 12-15¬ 114 ( a ) , A l a . C o d e 1 9 7 5 . During the litigation, position, o f f e r i n g evidence properly care DHR apparently indicating that f o r the children. DHR changed i t s the father d i d not, could however, f o r m a l l y withdraw i t s dependency p e t i t i o n s and i t appeared a t trial with witnesses. I n her b r i e f to this 15 court, t h e mother 2100116 a r g u e s g e n e r a l l y t h a t DHR d i d n o t p r e s e n t c l e a r a n d c o n v i n c i n g evidence o f t h e dependency o f t h e c h i l d r e n , b u t h e r argument r e s t s p r i m a r i l y o n t h e p r o p o s i t i o n t h a t DHR a t t e m p t e d o n l y t o prove the facts alleged m a i n t a i n s do n o t r i s e above, those evidence, have established Furthermore, contention, and DHR d i d n o t l i m i t i t spetitions; physically 2d DHR argument, dependent b a s e d upon not Martin the the also proved and proved to 'find to that the the specific of the mother's Dep't t h e mother court can find had 735 S o . ("However, c o n t r a r y grounds not asserted that convincing dependency a tothe child i n t h e dependency o f Human R e s o u r c e s , 502 S o . 7 6 9 , 770 ( A l a . C i v . A p p . 1 9 8 7 ) ( s t a t i n g t h a t t h i s need As s t a t e d 2 S e e M.M.S. v . D.W., juvenile v. State t h e mother i t sevidence t o the a l l e g a t i o n s 1 2 3 0 , 1 2 3 2 ( A l a . C i v . A p p . 1 999) petition. o f dependency. contrary abused t h e c h i l d r e n . mother's 2d to the level which a l l e g a t i o n s , i fproven by c l e a r would children. in i n i t s petitions, t h e Department grounds a l l e g e d court d i d [ o f Human R e s o u r c e s ] i n the p e t i t i o n s because The mother does n o t a r g u e t h a t t h e c h i l d r e n c o u l d n o t be f o u n d d e p e n d e n t b e c a u s e t h e f a t h e r was c a p a b l e o f p r o p e r l y c a r i n g f o r t h e m . S e e T.K. v . M.G., [Ms. 2 0 9 1 1 6 2 , A p r i l 1, 2011] So. 3d , ( A l a . C i v . App. 2011) (Moore, J . , dissenting). H e n c e , we c o n s i d e r t h a t i s s u e t o b e w a i v e d . 2 16 2100116 we [found] that the juvenile grounds f o r determining Based partially children were Hence, adjudicate custody the had other t h a t the c h i l d r e n are on ultimately decided court that evidence, i n i t s O c t o b e r 21, sufficient dependent.')."). the juvenile 2010, court judgment t h a t the dependent. we the of the parents; conclude issue that of which the of juvenile the two court parents c h i l d r e n , i . e . , a mere c u s t o d y rather, dispute between c h i l d r e n were dependent w i t h i n the meaning of § 12-15-102 and, safety and initially, have the which decided, should not whether secondarily, i t did custodial disposition of welfare would conclude the children. We j u v e n i l e c o u r t had ample e v i d e n c e b e f o r e each determination and dependency final for next are subject asserts in hearing. the the i t f r o m w h i c h t o make that i t acted properly pursuant to i t s recognizing d i s f a v o r e d and discretion that the jurisdiction. Although mother protect final that failing The to that motions to a t r i a l the her court motion m o t h e r a r g u e s t h a t , on hearing, her newly 17 continue court's discretion, juvenile grant to appointed to the are the exceeded its continue the date counsel scheduled had just 2100116 received the discovery results mother for of also the need failed to hearing, court that, discovery health that juvenile the i f she and she After counsel time f o r the mother's counsel By her motion, e.g., 216 trial the Sea Calm (Ala. that a t r i a l for appellate counsel a short results was the the the mother to At the juvenile review mother's allowed the counsel objection the mental- to proceed with the mother's represented ready to proceed. Thus, to the to the juvenile motion. to the juvenile m o t h e r w a i v e d any Shipping court of court object Co., (refusing ruling period prepared she reason review. agreed with requested review, her to 1990) court's because juvenile that stated The unfounded. f a i l e d t o l o d g e an on failing issue received evaluation. argument this the just court's w o u l d be the juvenile court had was were a l l o w e d responses ruling continue mother's evaluation, court's to this hearing. the the address preserve final and mental-health motion not f r o m DHR mother's asserts denying her We responses be v. address b e c a u s e no w i l l not error in that S.A. to Cooks, was ruling on ruling. See, So. 212, 565 alleged objection held 18 court's 2d error raised; i n error unless that in the noting court 2100116 has been a p p r i s e d opportunity Ala. to 407, settled 409, o f i t s a l l e g e d e r r o r and has been g i v e n act thereon); 261 So. 2d and 431, p r i n c i p l e of law that be c o n s i d e r e d f o r the f i r s t Hoefer 434 mother due-process More next matters asserts the ("It i s a not objected t i m e on a p p e a l . " ) . right to notice specifically, Snellgrove, (1972) need not address t h e mother's argument The v. that she We, on t h i s was to 288 well- cannot therefore, issue not further. afforded argues that the c h i l d r e n ' s dependency, she had no her. because d e p e n d e n c y p e t i t i o n s d i d n o t a l l e g e p h y s i c a l abuse as a for her of the a l l e g a t i o n s against mother reason the to the basis believe t h a t t h o s e a l l e g a t i o n s o f p h y s i c a l a b u s e w o u l d be a d d r e s s e d a t the dependency h e a r i n g opportunity to and, t h e r e f o r e , adequately prepare s h e was a not given defense to the such allegations. The m o t h e r , h o w e v e r , challenge i n the waived t h i s juvenile failed court, constitutional issue to assert and, as any c o n s t i t u t i o n a l a result, for appellate she review. "Even c o n s t i t u t i o n a l i s s u e s must be properly preserved f o r appellate review. B r o w n v . S t a t e , 705 S o . 2 d 8 7 1 , 875 ( A l a . C r i m . A p p . 1 9 9 7 ) . 'Due p r o c e s s does n o t o v e r r i d e t h e b a s i c law o f p r e s e r v a t i o n , ... and t h e i s s u e must f i r s t be p r e s e n t e d t o t h e t r i a l c o u r t b e f o r e i t w i l l be r e v i e w e d on d i r e c t a p p e a l . ' 19 has 2100116 B o g l i n v. S t a t e , App. 2002)." B y r d v. See State, also So. 3d Consolidated [Ms. 2090095, App. 2010) 2d 10 840 Dec. (quoting Pipe 30, ( A l a . 1989)) raised for the challenge further. for A l t h o u g h the v. C i t y of 3d , 2008). Bessemer, (Ala. Civ. A u t o . A s s ' n v . Wade, 544 in failed to be a may post-judgment to preserve review, we need not i t was not her So. not be motion'"). i n the a r g u m e n t , we 64, ( A l a . C i v . App. that placed mother f a i l s of her in to c i t e note t h a t , 2005), their constitutional address i t i n W.T.H. v . this trial court may '"choose that court children's father's relevant c u s t o d i a l d i s p o s i t i o n o f a c h i l d who the Crim. ("'constitutional issues mother next a s s e r t s interest 71 Servs. (Ala. ( A l a . C r i m . App. So. time appellate 929 3 The best mother 626-27 2010] 917 the 926, & S u p p l y Co. United first 2d 624, 905, Because So. custody. caselaw i n support M.M.M., 915 So. s t a t e d : "In making i s f o u n d t o be 2d a dependent, a l t e r n a t i v e which i t finds We a l s o c o n c l u d e t h a t t h e i s s u e o f p h y s i c a l a b u s e o f t h e c h i l d r e n a t t h e m o t h e r ' s h a n d was t r i e d b y t h e i m p l i e d c o n s e n t of the p a r t i e s . M u l t i p l e w i t n e s s e s t e s t i f i e d to such abuse at t h e f i n a l h e a r i n g ; h o w e v e r , t h e m o t h e r r a i s e d no o b j e c t i o n t o that testimony. See R u l e 1 5 ( b ) , A l a . R. C i v . P. 3 20 2100116 t o be i n t h e b e s t v. interests S t a t e D e p a r t m e n t o f Human R e s . , Civ. App. 1997)] 633 (Ala. Civ. 15-314(a) court, could for once i thas determined upon despite h i scriminal d o m e s t i c abuse a s s e r t e d capable the juvenile father. Thus, evidence from interests custody argument placing that the children custody; and t h e a l l e g a t i o n s and s t a b l e was home lite custody award of willing f o r the under to the had before i t sufficient have determined that would We, the juvenile concerns court i t could to the father. DHR h a d no appeared t o have t h r i v e d pendente of the children court a preference i n the father's a suitable the juvenile which i t , the juvenile background the children court's i s dependent). had expressed while 1975, § 12- to the juvenile by t h e mother, t h e f a t h e r of providing c h i l d r e n ; and that before custody; that safety Code a child the children i n the father's Ala. 532 S o . 2 d 6 3 2 , available that the evidence the children's that, See a l s o the options have found t h a t being with App. 1 9 8 8 ) ) . " [W.T. 707 S o . 2 d 6 4 7 , ] 651 [ ( A l a . (quoting Wallace v. P o l l a r d , (addressing Based and of t h e [dependent c h i l d ] . " ' be served therefore, court 21 reject exceeded i n the father's by an the best award of the mother's its discretion i n custody. 2100116 As court the her f i n a l i s s u e , the mother a s s e r t s exceeded i t s d i s c r e t i o n children to be that i n o r d e r i n g her supervised and that the j u v e n i l e visitation with juvenile court the e x c e e d e d i t s d i s c r e t i o n by f a i l i n g to s u f f i c i e n t l y s p e c i f y the terms of t h a t v i s i t a t i o n . We latter of her child guiding who has jurisdiction child's and principle been and best [Ms. C i v . App. determining of (Ala. Civ. balance 2090832, 2011). interests Y.N. Jan. "The v. part brought juvenile 2011] under court So. court regard w i l l 1994). In "'[t]he rights of fashion the v. has court is parents with the So. 5 3d 570, 22 award that parent, absent an 299, 303 2d over entrusted child's (Ala. Civ. App. to best is tailored of the i n d i v i d u a l 586 of , i t s discretion trial Ratliff the discretion reversed So. a the is 3d broad 652 exercising circumstances Ratliff, n o t be Broyles, a visitation with J e f f e r s o n County Dep't 14, t h e s p e c i f i c f a c t s and v. and the trial Carr matters, to of visitation the v i s i t a t i o n r i g h t s of a n o n c u s t o d i a l App. the dependent See discretion." visitation determining protection i t s decision in this abuse in found interest. Human R e s . , in to the argument. The (Ala. a g r e e o n l y as to case.'" 2008) 2100116 (quoting App. Nauditt 2003) This of v. Haddock, 2d 364, 367 p r e v i o u s l y has addressed the appropriateness noncustodial parent's (plurality court requiring supervised a when 882 So. (Ala. Civ. opinion)). necessary to protect visitation the children to be from an u n r e a s o n a b l e r i s k of p h y s i c a l or e m o t i o n a l harm e m a n a t i n g the condition P r a t t v. So. 3d 638, recognized posed c o u r t may that parent. See, ( A l a . C i v . App. appropriate mother's e.g., 2010) to pain infringe[] upon the Lee, 49 So. 3d of harm t o c h i l d r e n medication). Jackson v. Jackson, a particular A trial restriction concern and thereby parent-child relationship.'" 211, 214 (Ala. 999 So. 2d Civ. 488, 56 visitation n o t , h o w e v e r , " ' s e l e c t [ ] an o v e r l y b r o a d address Pratt, (supervised to address r i s k addiction does more t h a n unduly v. the 642 as by of from App. 494-95 2010) Lee (quoting (Ala. Civ. App. 2007)). In mother's ordered the its final visitation that evidence mother judgment, had i t take was with place the the physically children at sufficient juvenile "Family to abused 23 to be ordered the supervised and Connections." support the court a finding children, i t Because that the cannot be 2100116 seriously disputed discretion in that the j u v e n i l e court requiring the mother's however, failed acted withini t s visitation to be supervised. The j u v e n i l e c o u r t , times f o r the mother's v i s i t a t i o n . particular children. had schedule applicable At the f i n a l hearing, to her v i s i t a t i o n h a s no with the encountered d i f f i c u l t y e x e r c i s i n g her v i s i t a t i o n with the Family children had been sessions there the visitation hampered or Connections; allowed and t h a t , been p r e s e n t schedule, to mother rights As t h i s has to party explained abruptly at a l l . end on and the she that the visitation the c h i l d r e n had Without reasonable a definitive expectation is of unreasonably or r e b u i l d i n g a r e l a t i o n s h i p with the c o u r t has r e c o g n i z e d , to provide f o r a noncustodial parent complete Pratt, no rely d i s c r e t i o n when i t f a i l s visitation she on some o c c a s i o n s , f o rv i s i t a t i o n i n maintaining children. See t h e mother t h a t she at its Thus, the mother t e s t i f i e d children not t o s p e c i f y dates and discretion over 56 S o . 3 d a t 6 4 4 - 4 5 24 that a trial court exceeds a specific schedule o r when i t a l l o w s schedule (citing of numerous a of third visitation. cases). 2100116 Because the j u v e n i l e c o u r t ' s judgment f a i l e d t o s e t f o r t h a specific visitation aspect juvenile of the court schedule judgment, f o r t h e m o t h e r , we r e v e r s e and we remand f o r f u r t h e r proceedings the cause consistent that to the with this opinion. AFFIRMED Thompson, I N PART; REVERSED P . J . , and I N PART; AND Pittman, concur. 25 Bryan, REMANDED. and Thomas, J J . ,

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