The Court of Appeals has reversed the juvenile court in a child custody case, finding its weighing of the evidence “plainly and palpably wrong.” In the case of G.H. v. K.G. and Y.G., Case No. 2031100 Ala. Civ. App. March 11, 2005), the facts are poignant. Mom and Dad never married. Mom is hooked on crystal meth and apparently out of the picture. Child is now 16, sexually active, drinking, smoking, and has untreated bipolar disorder. The custody contest is between Dad and Mom’s parents.
By all accounts, the trial court applied the wrong standard in its custody determination (“clear and convincing evidence” to overcome the McLendon standard vs. proving the biological father “unfit”), but the Court of Appeals found that error harmless. On the critical question of fitness for parenting, however, the Court of Appeals merely mentioned the Ore Tenus rule before brushing it aside.
The juvenile court had found that the maternal grandparents were suitable parents for the child. The Court of Appeals ruled that this judgment was “plainly and palpably wrong.”
A careful search of the record revealed that the juvenile court’s determination that the maternal grandparents are “physically … and emotionally capable” of caring for and supervising the minor child and that “they can provide a stable, secure[,] and nurturing environment in which the child will grow and mature” is plainly and palpably wrong. The undisputed evidence reveals that the maternal grandparents did not meet their burden of proof that the child’s best interests would be served by their being awarded custody. Therefore, the juvenile court’s judgment awarding custody to the maternal grandparents is due to be reversed.
The Court of Appeals mentioned that the maternal grandmother didn’t drive and couldn’t walk easily, that the maternal grandfather knew the child was having sex but that neither of the grandparents had said anything to her about it, and that the maternal grandparents hadn’t properly attended to the child’s treatment for bipolar disorder. This opinion is a 3-2 decision, and the “majority” opinion is actually that of only one judge, Crawley. In their concurrences, Judges Pittman and Bryan agree with the decision to reverse and remand but call for DHR supervision to backstop the maternal grandparents’ parenting.
In their separate dissents, Judges Thompson and Murdock look to the Ore Tenus rule and argue that the Court of Appeals should have affirmed the trial court’s ruling.