If you’re searching for a definitive statement in Alabama caselaw about the treatment of learning disabilities in child custody, don’t get your hopes up. But today’s case does have some discussion that may be helpful.
We’re talking about A.M. v. J.S., Case No. 2071213 (Ala. Civ. App. June 5, 2009). Parents never married. The court initially granted joint legal custody and sole physical custody to Mom. Six years later, Dad petitioned for custody. The Elmore County juvenile court denied Dad’s petition, and Dad appealed to the Elmore County Circuit Court for a new trial. That trial resulted in a ruling that the child’s primary residence should be with the Dad. The trial court did not specify whether Dad should have sole physical custody and also did not specify whether it specifically pursuant to McLendon that that the change would materially promote the child’s welfare and that the benefits of the change would more than offset the inherently disruptive effect of uprooting the child. Mom appealed to the Court of Civil Appeals.
The appeals court first acknowledged that its standard of review is limited in child custody matters, particularly when the court below has heard evidence ore tenus. The appeals court stated that its options for reversal would be a finding that the trial court abused its discretion or that its ruling was plainly and palpably wrong.
The appeals court summarized evidence presented to the trial court. On the one hand there was evidence that Mom had attempted in good faith to deal with the child’s learning disabilities (including dyslexia, attention deficit disorder, vision loss, and hearing loss), that Dad and his new wife failed to support and sometimes actively undermined Mom’s efforts, that Dad himself had learning disabilities as a child and had been home schooled for three years at least partially in response to his learning disabilities, that Mom had applied for SSI benefits to help pay for sending the child to a special school in Montgomery, and that Dad’s new wife coached the child to make negative statements about the Mom.
On the other hand, the trial court also heard evidence that Mom’s home was ill-kept and that the carpet smelled of pet urine and feces, that the child always seemed happy to see the stepmother, that the child’s learning disabilities were likely the result of Mom’s failure to spend quality time with the child, and that Mom had lied under oath about her marital status and the number of children she had when she applied for food stamps.
The appeals court stated that Mom, “without support from the father, and often in the face of antagonism by the father — had arranged for medical and educational testing for the child; that the mother had followed the recommendations of those she considered more knowledgeable than she was; and that the mother, in an effort to cover a part of the child’s tuition at a private school specializing in learning disabilities, had applied for SSI benefits for the child in an attempt to address the child’s academic problems. The court also heard undisputed testimony demonstrating that the father, the stepmother, and the child’s paternal grandparents had either denied the existence or minimized the impact of the child’s learning disabilities, specifically her dyslexia, and had attributed her academic deficiencies to the child’s failure to pay attention and try harder or to what, they thought, was poor parenting by the mother.” A.M. at 21-22.
The appeals court quoted with approval Alabama case law that the trial court was is the best position to assess the credibility of the witnesses, but it said the trial court’s judgment must be supported by the evidence.
This court cannot and will not undertake to resolve the question of what school the child should attend or what educational program the child should follow in order to remediate her learning disabilities. Nor do we condone the mother’s admitted misrepresentation of the facts concerning her eligibility for food stamps. However, we cannot affirm a trial court’s custody-modification judgment that is not supported by sufficient evidence to conclude that a change in custody will materially promote the child’s best interests and that the positive good brought about by a change in custody will more than offset the inherently disruptive effect caused by uprooting the child. A.M. at 22-23.
On the ground in Alabama. As we have asked in the past, we must ask again here, what exactly is left of ore tenus and its principle that trial courts are in the best position to weigh evidence and assess credibility of witnesses? There could hardly be a better example of a case where the court heard contradictory evidence, not only from the parents, grandparents, and stepparents, but also from teachers and counselors, about what the child needed and which parent was best positioned to care for her. Despite the bald assertion af the appeals court that there was no evidence to support the trial court’s judgment, the simple fact is that there was plenty of evidence on both sides.
Perhaps the appeals court reversed the trial court because the trial court made a specific finding that the change in custody ordered would materially promote the child’s welfare and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. That’s not what the appeals court said, though, so trial courts are left having to guess how to avoid being reversed.