M.C.A. v. Etowah Cnty. Dep't of Human Res. & O.P.

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M.C.A. v. Etowah County Department of Human Resources and O.P.

M.C.A. v. Etowah County Department of Human Resources and O.P.

Nos. CL-2023-0286, CL-2023-0287

Alabama Court of Civil Appeals

January 31, 2024

Appeal from Etowah Juvenile Court (JU-21-9.01), (JU-21-10.01)

PER CURIAM.

This is the second time these parties have been before this court.

Two children, E.V.A., a daughter, and E.C.A., a son ("the children"), were born of the marriage of O.P. ("the mother") and M.C.A. ("the father"). The mother also has a daughter ("the stepdaughter") who was born as a result of a previous relationship of the mother's and who lived in the home with the mother, the father, and the children.

The record indicates that in April 2019 the Calhoun County Department of Human Resources ("the Calhoun County DHR") investigated allegations that the father had sexually abused the stepdaughter. A Calhoun County DHR social worker explained that because the family had not cooperated with the investigation and no further information could be gathered, the Calhoun County DHR had taken no action. No criminal charges were filed in Calhoun County with regard to the father's alleged abuse of the stepdaughter.

Regardless in May 2019, the mother filed an action in the Calhoun Circuit Court in which she sought a divorce from the father. On January 20, 2020 the Calhoun Circuit Court entered a judgment divorcing the mother and the father. That divorce judgment purports to award the mother and the father joint custody of the children. However, the terms of the divorce judgment pertaining to custodial periods with the children state that the mother and the father will agree to custodial periods but that, if they cannot agree, the father is awarded visitation with the children from Thursday to Sunday on alternating weeks and overnight every Friday. Thus, the divorce judgment awards the mother sole custody of the children, affords the father periods of visitation with the children, and awards the mother and the father joint legal custody of the children. See § 30-3-151, Ala. Code 1975; Whitehead v. Whitehead, 214 So.3d 367, 371 (Ala. Civ. App. 2016).

In July 2020, the Etowah County Department of Human Resources ("DHR") received a report of inadequate shelter for the children at the father's home; the children were visiting the father when DHR received that report. During the course of investigating that inadequate-shelter report, DHR social workers learned of the allegations of sexual abuse of the stepdaughter by the father. DHR filed actions requesting that the Etowah Juvenile court ("the juvenile court") find the children and the stepdaughter dependent and sought an award of custody of all three children. Only the actions pertaining to the children are at issue in these appeals.

After conducting a dependency hearing at which it received ore tenus evidence, the juvenile court entered judgments on February 11, 2021, in which it found the children dependent and awarded custody of them to DHR pending a dispositional hearing. We note that DHR had placed the children in the mother's home. The father appealed, and this court affirmed the February 11, 2021, judgments, without an opinion. See M.C.A. v. Etowah Cnty. Dep't of Hum Res., 357 So.3d 656 (Ala. Civ. App. 2021). The father filed petitions for the writ of certiorari to the Alabama Supreme Court, which denied those petitions. See Ex parte M.C.A., 357 So.3d 657 (Ala. 2021). On December 20, 2021 this court issued its certificates of judgment in M.C.A. v. Etowah County Department of Human Resources, supra.

On January 25, 2022, DHR filed in the juvenile court motions requesting that custody of the children be returned to the mother. The juvenile court conducted a hearing over the course of two days at which it received ore tenus evidence on DHR's motions. On April 5, 2023, the juvenile court entered a judgment in each of the actions in which it awarded custody of the children to the mother, awarded the father supervised visitation with the children, and terminated DHR's involvement in the matters. The father filed a postjudgment motion in each action, which were denied by operation of law. See Rule 59.1, Ala. R. Civ. P.; and Rule 4(a)(1), Ala. R. App. P. The father timely appealed both judgments. This court consolidated the appeals.

The father argues in his appellate brief that the juvenile court was without authority to award custody of the children to the mother and award him supervised visitation with the children. The father relies, in part, on portions of the Alabama Juvenile Justice Act ("the AJJA"), § 1215-101 et seq., Ala. Code 1975, which provides, in part, that "[a] juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged ... to be dependent ...." § 12-15-114(a), Ala. Code 1975. See § 12-15-102(8), Ala. Code 1975 (defining the term "dependent child"). A "dependent child" is defined as

"[a] child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:

"1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in Section 12-15-301[, Ala. Code 1975,] or neglect as defined in Section 12-15-301, or allows the child to be so subjected.

"2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.

"3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.

"4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state.

"5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 1215-301.

"6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.

"7. Who has been placed for care or adoption in violation of the law. "8. Who, for any other cause, is in need of the care and protection of the state."

§ 12-15-102(8)a.

Initially, DHR alleged that the children were dependent because of the father's alleged sexual abuse of the stepdaughter, which invoked the juvenile court's subject-matter jurisdiction. The AJJA also specifies that if a juvenile court finds a child dependent, it may immediately "make proper disposition of the case" or may make a custodial disposition of the child at a later, dispositional hearing. § 12-15-311(a), Ala. Code 1975; see also Rule 25(A), Ala. R. Juv. P. ("At any adjudicatory hearing in a ... dependency ... case ..., the juvenile court may proceed immediately to a dispositional hearing after adjudication or may set a dispositional hearing for a later date."). In its February 11, 2021, judgments, the juvenile court found the children dependent, awarded pendente lite custody of the children to DHR, and scheduled the matter for a future hearing. Thus, because the February 11, 2021, judgments did not dispose of the dependency actions, those judgments were adjudicatory and not dispositional.

In 2022, when DHR asked the juvenile court to return custody of the children to the mother, DHR took the position that the mother was a fit parent and capable of properly caring for the children; it contended, however, that the children were dependent as to the father. The juvenile court scheduled the matters for a dispositional hearing pursuant to § 1215-311.

Under the AJJA, a juvenile court may make a custodial disposition, or a custodial award, of a child only if that child is found to be dependent at the time it enters the dispositional judgment. § 12-15-311(a); see also § 12-15-314(a) ("If a child is found to be dependent, the juvenile court may make any of the following orders of disposition to protect the welfare of the child ....). Although a juvenile court may find a child dependent at the time of an adjudicatory hearing, if a dispositional hearing is conducted on another date, the child must be determined to be dependent at the time of the entry of the dispositional judgment in order for the juvenile court to have jurisdiction to enter that judgment. See H.A.S. v. S.F., 298 So.3d 1092, 1102 (Ala. Civ. App. 2019); J.P. v. D.P., 260 So.3d 862, 871 (Ala. Civ. App. 2018). This court has explained:

"'Juvenile courts are purely creatures of statute and have extremely limited jurisdiction. See Ex parte K.L.P., 868 So.2d 454, 456 (Ala. Civ. App. 2003). That limited jurisdiction allows a juvenile court to make a disposition of a child in a dependency proceeding only after finding the child dependent. V.W. v. G.W., 990 So.2d 414, 417 (Ala. Civ. App. 2008) (quoting K.B. v. Cleburne County Dep't of Human Res., 897 So.2d 379, 389 (Ala. Civ. App. 2004) (Murdock, J., concurring in the result)) ("'[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.'").'

"T.B. v. T.H., 30 So.3d 429, 431 (Ala. Civ. App. 2009) (some emphasis added)."

M.D. v. S.C., 150 So.3d 210, 212 (Ala. Civ. App. 2014). The AJJA allows a juvenile court to award custody of a dependent child to a parent. See § 12-15-314(a)(1).

The father argues on appeal that because it was undisputed that the mother was a fit parent for the children at the time of the disposition of the children, the children...