B.H. v. Tuscaloosa County Department of Human Resources , 2014 Ala. LEXIS 131 ( 2014 )

REL:09/12/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
_________________________
1130813
_________________________
Ex parte B.H.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: B.H.
v.
Tuscaloosa County Department of Human Resources)
(Tuscaloosa Juvenile Court, JU-12-549.01; JU-12-550.01;
and JU-12-566.01;
Court of Civil Appeals, 2120805)
SHAW, Justice.
WRIT DENIED. NO OPINION.
Stuart, Bolin, Murdock, Main, Wise, and Bryan, JJ.,
concur.
1130813
Shaw, J., concurs specially.
Moore, C.J., and Parker, J., dissent.
2
1130813
SHAW, Justice (concurring specially).
B.H. ("the mother") petitions this Court for certiorari
review of the decision of the Court of Civil Appeals affirming
the judgments of the Tuscaloosa Juvenile Court directing the
mother to pay child support in connection with dependency
actions as to her three children. B.H. v. Tuscaloosa Cnty.
Dep't of Human Res., [Ms. 2120805, January 31, 2014] ___ So.
3d ___ (Ala. Civ. App. 2014). I concur to deny the petition.
In 2008, the mother and the father were divorced by the
Tuscaloosa Circuit Court. The divorce judgment placed sole
custody of the couple's children with the father. The divorce
judgment did not order either party to pay the other child
support.1
In November 2012 the Tuscaloosa County Department of
Human Resources ("DHR") filed petitions in the Tuscaloosa
Juvenile Court seeking a declaration that the mother and
1
The mother indicates that the divorce judgment stated
that "neither party shall pay any child support." Nothing
before us indicates that this statement held anything more
than that the actual parties to the divorce case--the mother
and the father--were not required to pay child support to each
other. Additionally, as explained further, that order could
not impact a later dependency action, over which the circuit
court would have no jurisdiction.
3
1130813
father's children were dependant. After further proceedings,
the children were declared dependent. Under Ala. Code 1975,
§ 12-15-314, part of the Alabama Juvenile Justice Act, § 12-
15-101 et seq., Ala. Code 1975, which became effective in
2009, when a child is found to be dependent, "the juvenile
court" is empowered by the legislature, among other things, to
"[t]ransfer legal custody" of the child to the Department of
Human Resources or, among others, certain "local public"
agencies. § 12-15-314(a)(3)a and b. The juvenile court in
these cases placed the children in the custody of DHR.
"When a child is placed in the legal custody" of the
Department of Human Resources or certain other departments,
agencies, organizations, entities, or persons, § 12-15-314(e)
requires that, "when the parent ... has resources for child
support, the juvenile court shall order child support." This
child support "shall be paid" to the Department of Human
Resources or to the "department, agency, any other
organization, entity, or person in whose legal custody the
child is placed." Id. In compliance with the mandatory
directives of this Code section, the juvenile court in the
4
1130813
instant cases ordered the mother and the father to pay child
support to DHR.
According to the Court of Civil Appeals, the mother
argued that the juvenile court's orders requiring the payment
of child support to DHR "constituted invalid modifications of
the circuit court's 2008 divorce judgment in which the circuit
court had waived the requirement that the mother pay child
support to the father." ___ So. 3d at ___ (emphasis added).
I see no modification to the 2008 divorce judgment by the
juvenile court's action: The juvenile court did not order
child support to be paid by the mother to the other party to
the divorce judgment, i.e., the father. Instead, the juvenile
court ordered child support to be paid to DHR, which was not
a party to the divorce proceeding. Although the prior divorce
judgment of the circuit court established the child support
the mother and the father would be required to pay each other
as part of their divorce, it did not, and could not,
"establish" child-support obligations a parent might be
required to pay as part of a later filed dependency action.
The juvenile court, not the circuit court in a divorce action,
has "exclusive original jurisdiction" to determine dependency
5
1130813
actions, Ala. Code 1975, § 12-15-114, and this includes issues
of both custody and support. See § 12-15-314. The cases
currently pending in the juvenile court are not the prior
divorce action; they are wholly different actions, styled as
between DHR, on the one hand, and the mother, on the other,
and they invoke a wholly different court and jurisdiction,
namely, the "exclusive original jurisdiction" of the juvenile
court.
As the Court of Civil Appeals held, § 12-15-314
specifically empowers the juvenile court to order the mother
and the father to pay child support to DHR. The fact that a
juvenile court is a "lower court" to a circuit court is not
material when it proceeds under the powers explicitly provided
by the legislature; that circuit courts are placed over
juvenile courts in the judicial hierarchy does not invalidate
§ 12-15-314. See Ala. Const. 1901, Art. VI, § 142(b) ("The
circuit court shall exercise general jurisdiction in all cases
except as may otherwise be provided by law." (emphasis
added)). If the circuit court's decision as to child support
in the divorce judgment forecloses the juvenile court from
ordering the payment of child support in these dependency
6
1130813
cases, then the juvenile court had no power to transfer
custody of the dependent children, because that issue has also
"been litigated, and the circuit court retains jurisdiction
over that issue." ___ So. 3d at ___ (Moore, C.J., dissenting).
I see no support for holding that the Alabama Juvenile Justice
Act essentially has no applicability when the parents of a
purportedly dependent child were previously divorced by a
proceeding in the circuit court.
Finally, as Judge Moore stated in his writing concurring
in the result in the Court of Civil Appeals' opinion, the
caselaw cited on appeal in support of the mother's position,
Ex parte M.D.C., 39 So. 3d 1117 (Ala. 2009), and A.S. v.
W.T.J., 984 So. 2d 1196 (Ala. Civ. App. 2007), did not involve
dependency actions or § 12-15-314. ___ So. 3d at ___.
I see no probability of merit in the argument in the
mother's certiorari petition that the Court of Civil Appeals
erred. Rule 39(f), Ala. R. App. P. Therefore, I concur to
deny the petition.
7
1130813
MOORE, Chief Justice (dissenting).
B.H. ("the mother) and M.H. ("the father") adopted
J.M.H., I.H., and A.H. ("the children") in 2001. The mother
and the father divorced in 2008. The divorce judgment entered
by the Tuscaloosa Circuit Court ("the circuit court") awarded
the father sole custody of the children and ordered the mother
not to pay child support because she and the father intended
that the mother's parental rights to the children would be
terminated.2
The Tuscaloosa County Department of Human Resources
("DHR") filed the present actions in the Tuscaloosa Juvenile
Court ("the juvenile court"), seeking to declare the children
dependent and to obtain custody over them. In March 2013, by
stipulation of the mother and the father, a referee for the
juvenile court found the children to be dependent and awarded
DHR custody over them. The referee then scheduled a hearing to
determine the mother's and the father's child-support
obligations under § 12-15-314(e), Ala. Code 1975, which
provides:
2
The mother's parental rights had not been terminated when
the present actions were initiated.
8
1130813
"When a child is placed in the legal custody of the
Department of Human Resources ... and when the
parent, legal guardian, or legal custodian of the
child has resources for child support, the juvenile
court shall order child support in conformity with
the child support guidelines as set out in Rule 32,
Alabama Rules of Judicial Administration."3
The juvenile court then ratified the referee's decisions
according to Rule 2.1(G), Ala. R. Juv. P.,4 and § 12-15-
106(g), Ala. Code 1975.5 The juvenile-court referee then
ordered the mother and the father to pay child support for the
children; the juvenile court ratified the child-support
awards.
The mother appealed the juvenile court's judgments to the
Court of Civil Appeals, alleging that the juvenile court
lacked the jurisdiction to modify the child-support judgment
of the circuit court, which had retained jurisdiction over its
3
The provisions of Rule 32, Ala. R. Jud. Admin.
(referenced in § 12-15-314(e)), are too lengthy to quote here.
They set out the guidelines for child support in actions
seeking to establish or modify child support.
4
Effective July 1, 2014, Rule 2.1 has been rescinded
because the substance of that rule has been codified in § 12-
15-106, Ala. Code 1975.
5
Rule 2.1(G), Ala. R. Juv. P., stated, and § 12-15-106(g),
Ala. Code 1975, states: "The findings and recommendations of
the referee shall become the order of the court when ratified
by the original signature of a judge with authority over
juvenile matters."
9
1130813
child-support order. The Court of Civil Appeals affirmed the
judgments of the juvenile court on the ground that, when a
circuit court considers custody and child-support obligations
in a divorce action, the circuit court does not retain
exclusive jurisdiction over separate lawsuits such as
dependency actions that are unrelated to the divorce judgment.
B.H. v. Tuscaloosa Cnty. Dep't of Human Res., [Ms. 2120805,
January 31, 2014] ___ So. 3d ___, ___ (Ala. Civ. App. 2014).
The Court of Civil Appeals held that DHR's filings with the
juvenile court regarding dependency and custody triggered the
exclusive jurisdiction of the juvenile court pursuant to § 12-
15-114(a), Ala. Code 1975, which states that a "juvenile court
shall exercise exclusive original jurisdiction of juvenile
court proceedings in which a child is alleged ... to be
dependent."
I agree that the juvenile court obtained exclusive
original jurisdiction over the dependency matters when DHR
filed the present actions in the juvenile court; however, I do
not believe that the juvenile court's jurisdiction over the
dependency matters allowed the juvenile court to modify the
mother's child-support obligations ordered in the divorce
10
1130813
judgment entered by the circuit court. The juvenile court
would have no jurisdiction over this matter but for the
dependency of the children, and that dependency cannot be
attributed to the mother because, pursuant to a circuit
court's order, she was no longer responsible for the
children's financial well being. The juvenile court entered
its child-support orders pursuant to § 12-15-314(e), which
requires juvenile courts to consult the child-support
guidelines in Rule 32, Ala. R. Jud. Admin., before ordering
child support. The guidelines for Rule 32 are "for use in any
action to establish or modify child support, whether temporary
or permanent." Because the circuit court had already
established the child-support obligations of the mother and
the father, the juvenile court could only modify those
obligations. However, the juvenile court lacked the authority
to modify those obligations, over which the circuit court
retained jurisdiction. See A.S. v. W.T.J., 984 So. 2d 1196,
1202-03 (Ala. Civ. App. 2007)(voiding the juvenile court's
child-support order for lack of subject-matter jurisdiction
and holding that the circuit court not only "acquired subject-
matter jurisdiction over the issue of custody" and "matters
11
1130813
pertaining to custody," but "it also acquired subject-matter
jurisdiction over matters pertaining to visitation and child
support" when it adjudicated those issues "within its divorce
judgment" (emphasis added)).
A juvenile court's jurisdiction is limited, whereas a
circuit court's jurisdiction is general. See § 12-15-117(a)
(describing the limited nature of the juvenile court's
jurisdiction); Art. VI, § 139(a), Ala. Const. 1901 (providing
that Alabama's "unified judicial system ... shall consist of
... a trial court of general jurisdiction known as the circuit
court"). A juvenile court is a lower court to a circuit court
and, as such, even with exclusive original jurisdiction over
dependency actions, has no authority to order a parent to pay
child support the circuit court has ordered the parent not to
pay. From the moment the circuit court awarded custody to the
father and discharged the mother from her child-support
obligations, the father bore the responsibility to support and
care for the children. The issue whether the mother was
obligated to pay child support has been litigated, and the
circuit court retains jurisdiction over that issue. See Ex
parte Lipscomb, 660 So. 2d 986, 989 (Ala. 1994)(holding that
12
1130813
"matters of child custody are never res judicata, and the
circuit court retains jurisdiction over the matter for
modification"). Because the juvenile court improperly modified
the circuit court's judgment by ordering the mother to pay
child support in contravention of the circuit court's order,
I respectfully dissent.
13