Sometimes it’s a long and winding road to custody. Consider H.C. v. S.L., a case from 2015 on it’s third appearance before the Alabama Court of Civil Appeals. On its two previous times through the lower court, a child was alleged to have been dependent, was found dependent by the juvenile court, and was placed with grandma – only to be reversed by the appellate court and sent back for more court. This the third and most recent time around, the child was not found dependent but was placed with grandma anyways because she’d been there since 2015. Finally on this third time before the appellate court, the Alabama Court of Civil appeals reversed again, but not before telling the lower court to give custody to mom.
An appeal, or even two is not uncommon for dependency cases. Juvenile courts confronted with the question of dependency must navigate a maze of statutory and constitutional rules, some of which we have addressed before. For example, we looked at a case that considered whether a child can be dependent where one parent is unfit, and the other custodial parents is fit. Spoiler: a child with a fit custodial parent is not dependent.
Here the appellate court had twice rejected the juvenile court’s determination that the child was dependent for reasons not essential to the third appeal. As a result, on the third time the juvenile court took up the case the child was not found dependent. However, juvenile courts may (and sometimes are the only venue to) address issues of custody when cases have originated in their court. Indeed, that is what the juvenile court did here.
On it’s third trip through the juvenile court custody was again awarded to grandma. This time however, it wasn’t based on the dependency of the child. Instead, the juvenile court when comparing possible placements with mom or grandma, determined that it was in the child’s best interests to remain with grandma. This decision was based – at least in part – on the fact that the child had been living with grandma for around the past three years. Again, the Court of Civil Appeals reversed the juvenile court.
According to the appellate court, the juvenile court had misused pendent lite (a.k.a. temporary) custody to do an end around the dependency process. Because the grandmother’s custody was just temporary, it was only to exist while the dependency case was pending. Once the issue of dependency had been resolved and dismissed, that temporary custody went away. If the temporary custody could serve as the basis for removing a child from its parent, it would essentially allow a dependency proceeding without the higher standards of due process involved when a parent’s fundamental right to care, custody, and control of their child is at issue.
Since grandma’s custody couldn’t be based on her temporary custody during the dependency action, the appellate court again reversed the juvenile court’s decision. Furthermore, this time, rather than remanding it to the juvenile court, the appellate court took the unusual step of issuing a ruling that reinvested custody with the mother.
The Alabama Court of Civil Appeals did not address whether grandmother can now go to Circuit Court and seek custody on a “best interest” or related standard. It may be that grandma’s pendent lite custody of the child will give her standing to press her case again in a different court. Though sometimes cases started in juvenile court must remain in juvenile court for custody determinations.