Every now and then, we read a case that reminds us how fortunate we are that we are not judges, that we are not called on to make the delicate, excruciating calls that judges must about the fine china of peopleâ€™s lives. S.P. v. E.T., Case No. 2040044 (Ala. Civ. App. December 30, 2005) is such a case, pitting a childâ€™s foster mother against the childâ€™s aunt and uncle. The appeals court said this is the sixth time this case has been before the court.
The child, who had earlier lived with the foster mother for five years, had been in the custody of the aunt and uncle since January 2003, interrupted by weekend visitation with the foster mother and foster siblings. Less than a year after the change, however, the foster mother filed requesting that custody of the child, â€œwho has been determined to be dependent,â€ be placed with the foster mother.
The Bessemer County Juvenile Court heard evidence of numerous problems with the custody of the child with the aunt and uncle, most notably three separate occasions on which the uncle had been charged with driving under the influence of alcohol. At the conclusion of the hearing, the juvenile court determined that the appropriate standard for deciding child custody in this case was that set by Ex parte McLendon, â€œwhereby the petitioner must show that a change of custody will materially promote the childâ€™s best interest and welfare and produce evidence to overcome the inherently disruptive effect caused by uprooting the child.â€ The juvenile court denied the foster mother’s petition to modify and left custody with the aunt and uncle.
The appeals courtâ€™s opinion is fragmented, with a Per Curiam opinion (the opinion for the court), a special concurrence by Judge Murdock (joined by Judge Bryan), and a special concurrence by Judge Thompson (joined by Judge Pittman). The Per Curiam opinion reversed and remanded the case to the juvenile court on the grounds that the juvenile court should have looked simply to the best interests of the child rather than to the McLendon standard.
The current case presents the question whether application of the McLendon standard is appropriate when the “final” dispositional order at issue reflects that DHR’s continued supervision of the custodial placement was necessary. See Ala. Code 1975, Â§ 12-15-1(10)m. and n.; Ala. Code 1975, Â§Â§ 12-15-71(a)(1) and (a)(2). . . . The McLendon standard was not articulated in the context of a dependency proceeding, and, as the current case demonstrates, dependency proceedings often involve issues that are not present in normal custody proceedings. In fact, dependency proceedings are sui generis [unique, not falling into any easy classification]. . . . [It] appears that a rigid or premature application of the McLendon standard could, in a particular case, prove detrimental to the child and be inimical to the purposes of the dependency statutes, which is the elimination of a child’s dependency and a return as soon as possible to custodial care that is appropriate and that is in the child’s best interest. See Ala. Code 1975, Â§ 12-15-1.1.
The appeals courtâ€™s Per Curiam opinion specifically declined to articulate a general rule as to when the McLendon standard is appropriate for dependency cases and when it is not. It just said it was wrong to apply it in this case.
In his special concurrence, joined by Judge Bryan, Judge Murdock argued that even if the juvenile court was correct to apply the McLendon standard, there was sufficient evidence in the record to overcome the presumption against changing custody, particularly in a case like this one where there seemed little or no stability in the childâ€™s life other than while she had lived with the foster mother. â€œAny promotion [of the childâ€™s best interests] would more than offset the disruptive effect because there is no appreciable disruptive effect, or at least none remotely approaching the type of disruptive effect with which McLendon was concerned. See Smith v. Smith, 865 So. 2d 1207, 1212 (Ala. Civ. App. 2003) (Murdock, J., concurring in the result); see also Ex parte J.M.F., 730 So. 2d 1190, 1194 (Ala. 1998).â€
In his special concurrence (joined by Judge Pittman), Judge Thompson said he concurred in the result only, not the reasoning, and he specifically disagreed with Judge Murdock’s conclusion that there was evidence sufficient to overcome the McLendon presumption.