M.L.W. v. J.W. ( 2023 )

REL: May 12, 2023
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) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________
CL-2022-0640
_________________________
M.L.W.
v.
J.W.
Appeal from Limestone Juvenile Court
(JU-21-138.01)
MOORE, Judge.
M.L.W. ("the mother") appeals from a judgment entered by the
Limestone Juvenile Court ("the juvenile court") finding S.C. ("the child"),
who was born on May 18, 2018, dependent and awarding custody of the
child to J.W. ("the maternal grandfather"). We affirm the juvenile court's
judgment.
CL-2022-0640
Procedural History
On May 18, 2021, the maternal grandfather filed a verified
complaint, pursuant to Ala. Code 1975, § 12-15-120, a part of the
Alabama Juvenile Justice Act ("the AJJA"), Ala. Code 1975, § 12-15-101
et seq., alleging that the child was dependent and that the child was, at
the time of the filing of the complaint, in the sole legal and sole physical
custody of the mother. In the complaint, the maternal grandfather
alleged that the mother had been acting erratically and had exposed the
child to illegal substances and that the child had sustained unexplained
injuries while in the mother's care. The maternal grandfather requested
that the juvenile court award him "temporary" custody of the child
pending a "permanency hearing in this matter" to safeguard the child
from the jeopardy of being harmed while in the care of the mother. On
that same date, the maternal grandfather filed a verified motion for an
ex parte order awarding him emergency custody of the child, pursuant to
Ala. Code 1975, § 12-15-141.1 On May 19, 2021, the juvenile court
1Section 12-15-141 provides, in pertinent part, that a juvenile court
may enter an ex parte order of protection on an emergency basis, without
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entered an emergency-custody order ("the emergency-custody order")
awarding the maternal grandfather emergency custody.
The juvenile court held a hearing on May 20, 2021, to determine
whether the emergency-custody order should be dissolved, continued, or
modified. 2 After that hearing, the juvenile court entered an order on May
21, 2021 ("the May 21, 2021, order"), indicating that the parties had
reached an agreement, pursuant to which the "temporary" custody of the
child would remain with the maternal grandfather and Jo.W., the
maternal great-grandfather of the child, and the mother would be
allowed to visit with the child at the discretion of the maternal
grandfather and the maternal great-grandfather. The May 21, 2021,
order essentially determined that the emergency-custody order should be
advance notice and a hearing, "upon a showing of verified written or
verbal evidence of abuse or neglect injurious to the health or safety of a
child subject to a juvenile court proceeding and the likelihood that the
abuse or neglect will continue unless the order is issued."
2The second sentence of § 12-15-141 provides: "If an emergency
order is issued, a hearing, after notice, shall be held within 72 hours of
the written evidence or the next judicial business day thereafter, to either
dissolve, continue, or modify the order."
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modified, but it did not find the child dependent or dispose of the custody
of the child.
On August 4, 2021, the juvenile court entered an order scheduling
the case for a "dependency hearing," i.e., an adjudicatory hearing to
determine whether there is clear and convincing evidence that a child is
dependent. See Ala. Code 1975, § 12-15-310. 3 In that order, the juvenile
court stated that "temporary" custody would remain with the maternal
grandfather until the adjudicatory hearing took place. On August 30,
3Section 12-15-310 provides, in pertinent part:
"(a) An adjudicatory hearing is a hearing at which
evidence is presented for a juvenile court to determine if a
child is dependent. At the commencement of the hearing, if
the parties are not represented by counsel, they shall be
informed of the specific allegations in the petition. The parties
shall be permitted to admit or deny the allegations prior to
the taking of testimony.
"(b) If the allegations are denied by the parties or if they
fail to respond, the juvenile court shall proceed to hear
evidence on the petition. The juvenile court shall record its
findings on whether the child is dependent. If the juvenile
court finds that the allegations in the petition have not been
proven by clear and convincing evidence, the juvenile court
shall dismiss the petition."
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2021, the juvenile court conducted the adjudicatory hearing; only the
mother testified at that hearing and, at the close of her testimony, she
stipulated that the child was dependent. On September 13, 2021, the
juvenile court entered an order finding the child dependent based on the
mother's stipulation of dependency, providing that custody of the child
was to "remain" with the maternal grandfather, and awarding the
mother supervised visitation with the child on a limited schedule but
allowing the parties to agree to additional visits. The order further
provided that a "[d]ispositional [r]eview is set for [December 10, 2021]."
At the "dispositional review" hearing, which actually took place on
December 3, 2021, the parties informed the juvenile court that "a special
setting for permanency" was necessary. On December 5, 2021, the
juvenile court entered an order scheduling a "review and scheduling
conference" for February 15, 2022; that order also specified that the child
would remain in the custody of the maternal grandfather and G.W., the
maternal grandmother, and that the mother would continue to visit with
the child in accordance with the September 13, 2021, order, which the
juvenile court referred to as "the [d]ependency [o]rder." The juvenile
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court continued the February 15, 2022, review and scheduling conference
to April 11, 2022. When the juvenile court convened court on that date,
the juvenile court indicated to the parties that the case had been set for
a "final permanency hearing," and no party objected. On April 26, 2022,
the juvenile court entered an order, entitled "[p]ermanency [o]rder,"
finding that the child remained dependent and vesting "the legal and
physical custody of [the child] ... in [the maternal grandfather]," subject
to an award of unsupervised bi-weekly weekend visitation to the mother,
as well as other specified visitation times. The mother filed her notice of
appeal to this court on May 9, 2022.
Jurisdiction
"Before addressing the merits of the issues raised on
appeal, we must first consider whether this court has
jurisdiction over the mother's appeal. ' "[J]urisdictional
matters are of such magnitude that we take notice of them at
any time and do so even ex mero motu." ' Singleton v. Graham,
716 So. 2d 224, 225 (Ala. Civ. App. 1998) (quoting Wallace v.
Tee Jays Mfg. Co., 689 So. 2d 210, 211 (Ala. Civ. App. 1997),
quoting in turn Nunn v. Baker, 518 So. 2d 711, 712 (Ala.
1987)). ' " '[S]ubject-matter jurisdiction may not be waived; a
court's lack of subject-matter jurisdiction may be raised at any
time by any party and may even be raised by a court ex mero
motu.' " ' M.B.L. v. G.G.L., 1 So. 3d 1048, 1050 (Ala. Civ. App.
2008) (quoting S.B.U. v. D.G.B., 913 So. 2d 452, 455 (Ala. Civ.
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App. 2005), quoting in turn C.J.L. v. M.W.B., 868 So. 2d 451,
453 (Ala. Civ. App. 2003))."
Fox v. Arnold, 127 So. 3d 417, 421 (Ala. Civ. App. 2012).
We must first decide whether the juvenile court retained
jurisdiction to enter its April 26, 2022, order such that the mother
appealed from a judgment capable of supporting an appeal. See J.F. v.
J.S., [Ms. 2210399, Dec. 2, 2022] ___ So. 3d ___ (Ala. Civ. App. 2022). In
J.F., this court considered an appeal from a judgment entered by the
DeKalb Juvenile Court in January 2022 that purported to modify the
custody of L.J.S., who had originally been found to be dependent in
August 2019 based on a stipulation of dependency entered between
L.J.S.'s mother and father, M.S. and J.S., and her maternal
grandparents, J.F. and A.F. The August 2019 dependency judgment
awarded custody of L.J.S. to J.F. and A.F. and set the matter for a review
hearing to be held in February 2020, after which J.S. was awarded
certain specified visitation with L.J.S. in response to a motion that J.S.
had filed shortly before the review hearing.
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M.S. filed a motion in January 2021 requesting custody of L.J.S.
and, after a trial, the DeKalb Juvenile Court entered an order in January
2022, determining that the August 2019 dependency judgment was a
final judgment relating to the child's custody and purporting to award
joint custody of L.J.S. to J.S. and M.S. On appeal, this court determined
that, because the dependency action had been concluded by an award of
custody to J.F. and A.F. in the August 2019 dependency judgment, the
DeKalb Juvenile Court had lacked jurisdiction to revisit that judgment
via the motions filed in the dependency action because neither parent
had instituted a new action by filing a complaint seeking a modification
of custody. Accordingly, because a void judgment will not support an
appeal, this court dismissed the appeal from the January 2022 judgment.
In the present case, this court must determine whether, like in J.F.,
the juvenile court's April 26, 2022, order was entered without
jurisdiction. The mother stipulated that the child was dependent at the
August 30, 2021, adjudicatory hearing. The juvenile court then stated:
"[B]ased on the stipulation, I'm going to find the child is dependent. And
the disposition will be that [the child's] going to remain with [the
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maternal grandfather]." The juvenile court then indicated that it was
going to award supervised, restricted visitation to the mother but that
the limited visitation order would be subject to review at a future
hearing. The juvenile court stated:
"Basically, we'll come back and see how everything is going.
And then from there maybe depending on how it goes, maybe
we can amend it some more. Maybe we can increase
visitation, see where we are there. And then maybe try to look
towards getting to the end of this case and getting something
more permanent. But for now, everything is just going to be
temporary and then we'll just kind of see where we are."
(Emphasis added.) The juvenile court ultimately entered the September
13, 2021, order, finding the child dependent based on the stipulation by
the mother, see K.D. v. Jefferson Cnty. Dep't of Hum. Res., 88 So. 3d 893,
896-97 (Ala. Civ. App. 2012) (affirming a finding of dependency based on
the stipulation of the mother in that case), and setting the case for a
dispositional-review hearing.
An order finding a child dependent, disposing of the custody of the
child, awarding a parent visitation, and setting the matter for further
review is considered sufficiently final to support an appeal. See T.C. v.
Mac.M., 96 So. 3d 115, 118 (Ala. Civ. App. 2011), aff'd, Ex parte T.C., 96
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So. 3d 123 (Ala. 2012). However, this court has determined that such
judgments are final for purposes of appeal not because they terminate
the dependency proceedings but because a finding that a child is
dependent coupled with a disposition of custody "addresses crucial issues
that could result in depriving a parent of the fundamental right to the
care and custody of his or her child, whether immediately or in the
future"; thus, we have allowed immediate appellate review of such
judgments. D.P. v. Limestone Cnty. Dep't of Hum. Res., 28 So. 3d 759,
764 (Ala. Civ. App. 2009). On the other hand, this court does not treat
orders that dispose of custody but contemplate ongoing dependency
proceedings to be final judgments and subject to change only through a
custody-modification action. To the contrary, a juvenile court may retain
jurisdiction to conduct a series of dispositional hearings to consider,
among other things, whether a child remains dependent and whether the
current custodial arrangement serves the best interest of the child. See
Ex parte Marshall Cnty. Dep't of Hum. Res., 233 So. 3d 345, 350 n.3, 355
(Ala. 2017); S.P. v. E.T., 957 So. 2d 1127 (Ala. Civ. App. 2005).
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Section 12-15-311(c), Ala. Code 1975, does not provide that, upon
finding a child dependent, a juvenile court is required to immediately
dispose of the custody of the child; instead, it provides that a juvenile
court may continue a dispositional hearing for a reasonable period to
receive evidence bearing on the disposition of a dependent child. Section
12-15-311(c) further states, that, when a juvenile court continues the
dispositional hearing, "the juvenile court shall make an appropriate
order for temporary care for the child, or the release of the child from
temporary care during the period of the continuance, subject to those
conditions as the juvenile court may impose." Section 12-15-311(c)
specifically authorizes a juvenile court to make a temporary disposition
of the custody of a child following an adjudicatory hearing and to set a
dispositional hearing for a later date for the purpose of receiving evidence
as to the proper disposition of the child that may be developed after the
adjudicatory hearing. Pursuant to § 12-15-311(c), a juvenile court may
retain jurisdiction to review the case periodically until it decides that the
circumstances have stabilized sufficiently to make a judicial
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determination of the final disposition of the custody of the child. See S.P.
v. E.T., supra.In the September 13, 2021, order the juvenile court followed the
procedure set forth in § 12-15-311(c). The juvenile court did not expressly
state in the September 13, 2021, order that it was awarding the maternal
grandfather "temporary" custody of the child and the mother "temporary"
visitation with the child, but the inclusion of the language at the end of
the order calling for a "dispositional review" hearing signaled that the
juvenile court was retaining jurisdiction over the case to make a final
disposition of the custody of the child consistent with the evidence
presented at that hearing. At the very least, the order was ambiguous,
permitting this court to examine the record to discern the intent of the
juvenile court when rendering the September 13, 2021, order. See Ex
parte Door Components, LLC, 171 So. 3d 18, 21 (Ala. Civ. App. 2014)
(citing Harvey v. Director of Revenue, 371 S.W.3d 824, 826 (Mo. Ct. App.
2012), for the proposition that an appellate court may consider oral
comments of a trial court to ascertain the meaning of an ambiguous
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phrase in a judgment); Wall v. Borosky, 850 So. 2d 351, 355 (Ala. Civ.
App. 2002).
Giving effect to all the provisions of the September 13, 2021, order,
see Hanson v. Hearn, 521 So. 2d 953, 955 (Ala. 1988), and considering
the comments of the juvenile court regarding its plans when wording the
judgment as well as the procedure that followed the September 13, 2021,
order, see Chapman v. Chapman, 634 So. 2d 1024, 1025 (Ala. Civ. App.
1994), it is apparent that the juvenile court did not intend to make a final
disposition of the custody of the child in the September 13, 2021, order
but, rather, made only a "temporary" custodial arrangement pending a
final dispositional hearing in accordance with § 12-15-311(c). Thus, the
present case is distinguishable from J.F.
We conclude that the juvenile court acted within its jurisdiction
under § 12-15-311(c) in entering the December 5, 2021, order scheduling
a dispositional-review hearing and in directing that the child would
remain in the custody of the maternal grandfather and G.W. in
accordance with the September 13, 2021, order. Because the juvenile
court had not yet made a final disposition of the child's custody at that
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time, unlike in J.F., supra, there was no need for the mother or any other
party to file a custody-modification action. At the April 11, 2022, hearing,
the juvenile court received testimony from the mother and the maternal
grandfather. During the mother's testimony, counsel for the maternal
grandfather stated that the purpose of the hearing was "in the context of
juvenile court anyway, what the permanent arrangement for [the child]
is going to be." See Downs v. Downs, 978 So. 2d 768, 773 (Ala. Civ. App.
2007) (holding that appellate court can consider all relevant
circumstances, including conduct of parties, in deciding meaning of
judgment). Counsel for the maternal grandfather then questioned the
mother about the circumstances that had changed since the entry of the
September 13, 2021, order that would affect the dependency of the child
and her ability to care for the child. The hearing concluded after the
maternal grandfather testified in support of his position that the child
should remain in his custody, and, on April 26, 2022, the juvenile court
entered its "[p]ermanency [o]rder."
For the purposes of the AJJA, a "permanency hearing" refers to a
hearing, in cases involving the Alabama Department of Human
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Resources ("DHR"), to determine the "permanency" plan for a child who
has been removed from his or her home and has been placed in out-of-
home care. See Ala. Code 1975, § 12-15-315. DHR was not involved in
this case, so the hearing was not a "permanency hearing" within the
meaning of § 12-15-315. However, it is apparent from the context of the
underlying proceedings that, in referring to a "permanency hearing," the
juvenile court and the parties were referencing a hearing to determine
the "permanent" custody arrangement for the child within the meaning
of § 12-15-311(c). In that context, the April 26, 2022, "permanency order"
was, in substance, a final dispositional order. See Diamond Concrete &
Slabs, LLC v. Andalusia-Opp Airport Auth., 103 So. 3d 73, 83 (Ala. Civ.
App. 2011) ("[T]he character of a judgment is determined by its substance
rather than its descriptive title."); Morgungenko v. Dwayne's Body Shop,
23 So. 3d 671, 674 (Ala. Civ. App. 2009) (holding that substance, not label,
determines nature of trial court's action). We conclude, therefore, that
the juvenile court retained jurisdiction to enter the April 26, 2022,
judgment in accordance with § 12-15-311(c); accordingly, the mother has
not appealed from a void judgment.
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Analysis
The mother argues on appeal that the juvenile court's
determination in the April 26, 2022, judgment that the child remained
dependent is not supported by clear and convincing evidence. We note,
however, that the juvenile court did not make any specific findings of fact
as to the grounds for its findings of dependency in its April 26, 2022,
judgment and the mother did not file a postjudgment motion challenging
the sufficiency of the evidence in support of that judgment. Rule 52(b),
Ala. R. Civ. P., provides, in pertinent part, that,
"[w]hen findings of fact are made in actions tried by the court
without a jury, the question of the sufficiency of the evidence
to support the findings may thereafter be raised whether or
not the party raising the question has made in the court an
objection to such findings or has made a motion to amend
them or a motion for judgment or a motion for a new trial."
See also New Props., L.L.C. v. Stewart, 905 So. 2d 797, 801-02 (Ala. 2004)
("[I]n a nonjury case in which the trial court makes no specific findings
of fact, a party must move for a new trial or otherwise properly raise
before the trial court the question relating to the sufficiency or weight of
the evidence in order to preserve that question for appellate review.").
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Because the mother failed to preserve her sole argument for
appellate review, we decline to consider the same. See K.M. v. S.R., 326
So. 3d 1062 (Ala. Civ. App. 2020). Accordingly, the juvenile court's
judgment is affirmed.
AFFIRMED.
Hanson and Fridy, JJ., concur.
Thompson, P.J., concurs in the result, without opinion.
Edwards, J., dissents, with opinion.
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EDWARDS, Judge, dissenting.
I respectfully dissent. I do not read Ala. Code 1975, § 12-15-311(c),
as broadly as does the majority. In a private dependency action, i.e., a
dependency action not involving the Department of Human Resources
("DHR"), there is no entity charged with making reasonable efforts to
rehabilitate the parent. See Ala. Code 1975, 12-15-312 (requiring DHR
to make reasonable efforts to rehabilitate a parent and to reunite the
family in most circumstances). In a private dependency action, the
juvenile court is also not required to hold periodic permanency hearings
to ensure that efforts to achieve permanency for the child are being made.
See Ala. Code 1975, § 12-15-315 (providing that, in cases involving DHR,
a juvenile court must hold periodic permanency hearings). Section 12-
15-311(c) provides that "the juvenile court may continue the dispositional
hearing … for a reasonable period to receive reports and other evidence
bearing on the disposition or need for care or rehabilitation." However,
in my opinion, setting a private dependency action for review every three
or six months after an initial determination of dependency and an initial
disposition of the custody of child is not a mere continuance of the
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dispositional hearing for a "reasonable time" to receive evidence bearing
on the child's disposition at or around the time of the dependency
determination. Instead, such "reviews" are clearly designed to permit the
juvenile court to consider changes in the circumstances of the parent,
which changes, in a private dependency action, should form the basis of
a petition to modify custody.
The September 2021 judgment, which was entered after the
dependency trial, adjudicated S.C. ("the child") dependent, awarded
"legal and physical custody" of the child to J.W. ("the maternal
grandfather"), and awarded M.L.W. ("the mother") specified visitation.4
4The September 2021 judgment states, in pertinent part:
"[I]t is therefore …
"ORDERED, ADJUDGED, and DECREED BY THE
COURT that [the child] is a dependent child ….
"It is FURTHER ORDERED BY THE COURT that the
legal and physical custody of [the child] remain with [the
maternal grandfather]. …
"….
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That judgment, unlike the orders that preceded the dependency trial, did
not label the custody award as "pendente lite" or "temporary." The
juvenile court set and held further review hearings to "see how
everything is going" and to consider whether visitation should be
modified, but I conclude that it lacked jurisdiction to do so, having
previously concluded the private dependency action by declaring the
child dependent and disposing of her custody. See J.F. v. J.S., [Ms.
2210399, Dec. 2, 2022] ___ So. 3d ___, ___ (Ala. Civ. App. 2022). The
mother failed to file a petition to modify the September 2021 judgment;
therefore, I consider the April 26, 2022, judgment void, and I would
dismiss the mother's appeal. See J.F., ___ So. 3d at ___.
"It is FURTHER ORDERED that a Dispositional
Review hearing is set on the 10th day of December 2021, at 9
a.m."
(Capitalization in original.)
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