S.L.M. and R.S.M. v. S.C. (Appeal from Etowah Juvenile Court: JU-11-120.02 and JU-11-487.02) Application For Rehearing Overruled.
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REL: 02/14/2014
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2013-2014
_________________________
2120004
_________________________
S.L.M. and R.S.M.
v.
S.C.
Appeal from Etowah Juvenile Court
(JU-11-120.02 and JU-11-487.02)
On Application for Rehearing
DONALDSON, Judge.
APPLICATION OVERRULED.
Thompson, P.J., and Pittman, J., concur.
Moore, J., dissents, with writing, which Thomas, J.,
joins.
2120004
MOORE, Judge, dissenting.
On original submission, this court, in describing the
convoluted procedural history of this case, stated:
"On May 30, 2012, [S.C.,] the maternal
grandmother[,] filed a 'Petition to Intervene and
For Custody' in the action relating to each child.
The petitions specifically allege that the children
are dependent as to [C.G.,] the mother[,] and the
biological father and acknowledged that the children
might be in the temporary custody of S.L.M.;
however, the petitions do not specifically allege
that the children are dependent while in S.L.M.'s
custody.
The trial court held a hearing on the
petitions and heard testimony ore tenus from all
parties. No party objected to the proceedings, which
were in the nature of a hearing as to the dependency
of
the
children,
not
a
custody-modification
hearing."
S.L.M. v. S.C., [Ms. 2120004, April 12, 2013] ___ So. 3d ___,
___ (Ala. Civ. App. 2013) (emphasis added). The above excerpt
indicates that this court determined on original submission
that
the
Etowah
Juvenile
Court
("the
trial
court")
had
conducted an adjudicatory hearing to determine the dependency
of S.D.A. and R.D.A. ("the children"), see § 12-15-310(a),
Ala. Code 1975, "not a custody-modification hearing." ___ So.
3d at ___.
This court further concluded on original submission that
the trial court had failed to comply with Rule 25 of the
2
2120004
Alabama Rules of Juvenile Procedure, which relates to the
findings a juvenile court must make following an adjudicatory
hearing on dependency.
See Rule 25(A), Ala. R. Juv. P.
This
court stated:
"As a threshold matter, the trial court's August
2012 order does not make the required finding as to
whether the children were dependent as of the time
of the hearing rather than when the trial court made
its initial determinations in the actions into which
the maternal grandmother petitioned to intervene,
and, moreover, the order fails to identify the
specific grounds to support a finding of dependency
pursuant to § 12-15-102(8)[, Ala. Code 1975].
"Because there had been an explicit prior
determination that R.D.A. was dependent and an
implicit determination of dependency as to S.D.A.,
the trial court was required to determine, by clear
and convincing evidence, whether, as of the time of
the hearing, the children were dependent while in
the custody of their respective custodians -- i.e.,
S.L.M. for S.D.A. and S.L.M. and R.S.M. for R.D.A.
A finding of dependency must be made separately as
to each child before the trial court may determine
whether the maternal grandmother should have
custody. The trial court's August 2012 order is not
sufficient to infer that such determinations of
dependency have been made."
___ So. 3d at ___ (emphasis added).
court
determined
that
the
trial
In other words, this
court,
following
an
adjudicatory hearing in a dependency proceeding, had failed to
make a finding that the children were currently dependent in
the custody of S.L.M. and R.S.M., a finding necessary to
3
2120004
sustain
its
judgment
awarding
the
maternal
grandmother
custody.
Based on those two conclusions, this court remanded the
case for the trial court to make the appropriate dependency
findings
necessary
to
sustain
its
custody
disposition,
stating:
"Therefore, we remand this cause to the trial court
for it to make, based on the existing record, the
written findings required by Rule 25(A), Ala. R.
Juv. P., as to whether each child is dependent as to
her custodian or custodians and, if so, identifying
the grounds supporting the findings of dependency.
If the trial court finds that the child was not
dependent as to her custodian or custodians, the
petition should be dismissed as to that child."
___ So. 3d at ___.
We remanded the case to the trial court
solely for the purpose of either (1) finding the children
dependent in the care of S.L.M. and R.S.M., in which case this
court, on return to remand, would review the evidence to
determine if clear and convincing evidence supported that
determination, see Ex parte McInish, 47 So. 3d 767, 778 (Ala.
2008), or (2) finding that the children were not dependent in
the care of S.L.M. and R.S.M., in which case the trial court
was instructed to dismiss the actions filed by the maternal
grandmother.
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2120004
"'It is the duty of the trial court, on remand,
to comply strictly with the mandate of the appellate
court according to its true intent and meaning, as
determined by the directions given by the reviewing
court. No judgment other than that directed or
permitted by the reviewing court may be entered....
The appellate court's decision is final as to all
matters before it, becomes the law of the case, and
must be executed according to the mandate ....'"
Ex parte Alabama Power Co., 431 So. 2d 151, 155 (Ala. 1983)
(quoting 5 Am. Jur. 2d Appeal and Error § 991 (1962)).
Hence,
on remand, the trial court was obligated to make one of the
two findings mandated by this court and to return the matter
to this court upon making one of those two findings.
The
trial court did not do that.
On
remand,
the
trial
court
determined
(1)
that
the
maternal grandmother had not filed a dependency petitions,
but, rather, had filed custody-modification petitions; (2)
that it had treated and tried the case solely as a custodymodification
proceeding;
(3)
that,
because
the
maternal
grandmother had filed only custody-modification petitions, a
finding of dependency was not necessary to transfer custody of
the children from S.L.M. and R.S.M. to her; (4) that the
custody-modification standard set forth in Ex parte McLendon,
455 So. 2d 863 (Ala. 1984), applied to the case; and (5) that
5
2120004
the maternal grandmother had met the McLendon standard.
Not
only did the trial court fail to follow our directive to make
an express determination as to the dependency of the children,
the trial court directly contradicted our holding that the
case was not a custody-modification case as a reason for
avoiding our mandate.
However, the trial court was not free
to reconsider that issue, which had already decided by this
court, Ex parte S.T.S., 806 So. 2d 336, 341 (Ala. 2001), or to
enter, on remand, a judgment that would "'render meaningless
the decision of the [appellate court] in the first appeal.'"
Alfa Mut. Ins. Co. v. Nationwide Mut. Ins. Co., 684 So. 2d
1295, 1302 (Ala. 1996).
Rather than correct the trial court, this court, in its
opinion on return to remand, see S.L.M. v. S.C., [Ms. 2120004,
Oct. 4, 2013] ___ So. 3d ___ (Ala. Civ. App. 2013), reviewed
the judgment for the first time as a custody-modification
determination
and
affirmed
it.
That
we
cannot
do.
"[W]hatever is once established between the same parties in
the same case continues to be the law of that case, whether or
not correct on general principles, so long as the facts on
which the decision was predicated continue to be the facts of
6
2120004
the case." Blumberg v. Touche Ross & Co., 514 So. 2d 922, 924
(Ala. 1987).
The law-of-the-case doctrine "will not permit
the trial court to reverse itself." Quimby v. Memorial Parks,
Inc., 835 So. 2d 134, 135 (Ala. 2002).
determined
that
this
matter
involves
Having already
a
judgment
from
dependency proceedings, this court could not subsequently
conclude otherwise, even if it was convinced that it had erred
in its earlier determination.
Although the trial court has not yet complied with our
mandate, I find no need to remand the case again.
I agree
with Judge Thomas's dissent on original submission that the
record contains no evidence, much less clear and convincing
evidence, indicating that the children are dependent in the
care of S.L.M. and R.S.M.
dissenting).
___ So. 3d at ___ (Thomas, J.,
Therefore, I would grant S.L.M. and R.S.M.'s
application for rehearing, I would reverse the trial court's
judgment, and I would direct the trial court to dismiss the
maternal grandmother's dependency petitions.
this
court
would
preserve
the
stability
of
In so doing,
these
young
children by keeping them in an indisputably suitable home with
7
2120004
two undeniably commendable and caring custodians1 instead of
uprooting them to live with complete strangers,2 although ones
related by blood, in an unknown environment.3
Thomas, J., concurs.
1
The record indicates that the younger child was born
premature with less than a 5% chance of surviving, but S.L.M.
attended to her throughout her infancy and has continued,
along with R.S.M., to assure that her medical needs are met.
Furthermore, I conclude that the record does not support a
finding that S.L.M. or R.S.M. has ever allowed the mother to
be around the children while using drugs, as the trial court
implied in its order on remand.
2
The maternal grandmother testified that she had never
seen the children. The record also disclosed that the older
sister of the children, who resides with maternal grandmother,
had never met the children, although she had seen photographs
of them.
3
The children have lived in the Gadsden area their entire
lives. The maternal grandmother lives in Waco, Kentucky.
8
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