M.H. v. Calhoun Cnty. Dep't of Human Res.

312 So.3d 1257

M.H.

v.CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES

J.D.C.

v.Calhoun County Department of Human Resources

2180986, 2180987, 2181048, 2181049

Court of Civil Appeals of Alabama.

June 5, 2020

Shirley A. Millwood, Alexandria, for appellant M.H.

Wendy Ghee Draper of Ghee, Draper & Alexander, Anniston, for appellant J.D.C.

Steve Marshall, atty. gen., and Felicia M. Brooks, chief legal counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.

THOMPSON, Presiding Judge.

On July 11, 2018, the Calhoun County Department of Human Resources ("DHR") filed petitions in the Calhoun Juvenile Court ("the juvenile court") seeking to terminate the parental rights of M.H. ("the mother") and J.D.C. ("the father") to their two minor children. The mother answered, opposing DHR's petitions, and she filed counterclaims seeking an award of custody of the children. The father also filed answers opposing DHR's termination petitions.

The juvenile court conducted an ore tenus hearing. On August 16, 2019, the juvenile court entered judgments terminating the parental rights of the mother and the father to the two children. The mother timely appealed on August 27, 2019. The mother's appeals were assigned appeal numbers 2180986 and 2180987. The father filed a postjudgment motion on August 30, 2019. That postjudgment motion was denied by operation of law, and the father timely appealed. The father's appeals were assigned appeal numbers 2181048 and 2181049.

On January 6, 2020, the mother's counsel filed a suggestion of death stating that the mother died on December 5, 2019. An appeal is not abated upon the death of a party to the appeal. See Rule 43(a), Ala. R. App. P. ("When the death of a party has been suggested, the proceeding shall not abate, but shall continue or be disposed of as the appellate court may direct."). However, this court noticed, ex mero motu, that, given the mother's death, the mother's appeals of the judgments terminating her parental rights might have been rendered moot. "[M]ootness implicates a court's subject-matter jurisdiction." Talladega Cty. Comm'n v. State ex rel. City of Lincoln, 303 So. 3d 476, 481 (Ala. 2020). For that reason, on January 14, 2020, this court issued an order reinvesting the juvenile court with jurisdiction to conduct a hearing and to enter a new judgment or judgments in compliance with C.J. v. T.J., 225 So. 3d 115 (Ala. Civ. App. 2016), discussed infra. Also on January 14, 2020, this court, ex mero motu, entered an order that unconsolidated the mother's appeals from the father's appeals.

After conducting a hearing, the juvenile court entered a January 30, 2020, amended judgment in which it again determined that the children's best interests would be served by the termination of the mother's parental rights. On February 14, 2020, this court entered an order stating that it would consider the possible mootness of the mother's appeals upon submission. After submission, this court has decided to again consolidate the mother's appeals and the father's appeals in order to consider all matters pertaining to the children at issue in one opinion.

As an initial matter, we address the issue whether this court has jurisdiction over the mother's appeals. If issues raised in an appeal are moot, this court lacks jurisdiction over the appeal. Talladega Cty. Comm'n v. State ex rel. City of Lincoln, supra ; K.L.R. v. K.G.S., 201 So. 3d 1200, 1203 (Ala. Civ. App. 2016).

An appeal of a judgment involving an award of monetary damages does not automatically become moot upon the death of a party. See, e.g., Slamen v. Slamen, 254 So. 3d 188, 191 n. 1 (Ala. 2017) ; Cottom v. Cottom, 275 So. 3d 1158, 1159 (Ala. Civ. App. 2018) ; International Mgmt. Grp., Inc. v. Bryant Bank, 274 So. 3d 1003, 1005 (Ala. Civ. App. 2018) ; and Woodruff v. Gazebo East Apartments, 181 So. 3d 1076, 1080 (Ala. Civ. App. 2015). The mother's appeals, however, do not involve monetary judgments but, instead, implicate only personal rights.

" ‘ "A moot case or question is a case or question in or on which there is no real controversy; a case which seeks to determine an abstract question which does not rest on existing facts or rights, or involve conflicting rights so far as plaintiff is concerned." ’ Case v. Alabama State Bar, 939 So. 2d 881, 884 (Ala. 2006) (quoting American Fed'n of State, County & Mun. Employees v. Dawkins, 268 Ala. 13, 18, 104 So. 2d 827, 830–31 (1958) ). ‘The test for mootness is commonly stated as whether the court's action on the merits would affect the rights of the parties.’ Crawford v. State, 153 S.W.3d 497, 501 (Tex. App. 2004) (citing VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) ). ‘A case becomes moot if at any stage there ceases to be an actual controversy between the parties.’ Id. (emphasis added) (citing National Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999) ).

"... ‘A moot case lacks justiciability.’ Crawford, 153 S.W.3d at 501. Thus, ‘[a]n action that originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised in it have become moot by subsequent acts or events.’ Case, 939 So. 2d at 884 (citing Employees of Montgomery County Sheriff's Dep't v. Marshall, 893 So. 2d 326, 330 (Ala. 2004) )."

Chapman v. Gooden, 974 So. 2d 972, 983–84 (Ala. 2007).

Our supreme court has explained:

"Mootness is a time dimension of standing. See In re Allison G., 276 Conn. 146, 156, 883 A.2d 1226, 1231 (2005) (‘One commentator has described mootness as "the doctrine of standing set in a time frame: [t]he requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)."

H. Monaghan, " Constitutional Adjudication: The Who and When," 82 Yale L.J. 1363, 1384 (1973).’). See also Presiding Judge Yates's special writing in Auburn Medical Center, Inc. v. Alabama State Health Planning & Development Agency, 848 So. 2d 269 (Ala. Civ. App. 2002), in which she stated:

" ‘ "Justiciability is a compound concept, composed of a number of distinct elements. Chief among these elements is the requirement that a plaintiff have ‘standing to invoke the power of the court in his behalf.’ " Ex parte State ex rel. James, 711 So. 2d 952, 960 (Ala. 1998), quoting Ex parte Izundu, 568 So. 2d 771, 772 (Ala. 1990)....

" ‘ "Mootness doctrine encompasses the circumstances that destroy the justiciability of a suit previously suitable for determination. It is not enough that the initial requirements of standing and ripeness have been satisfied; the suit must remain alive throughout the course of litigation, to the moment of final appellate disposition."

" ‘ 13A Charles A. Wright et al., Federal Practice & Procedure § 3533, at 211 (2d ed. 1984) (footnote omitted).’

" 848 So. 2d at 272–73 (Yates, P.J., concurring in the result) (emphasis added)."

Pharmacia Corp. v. Suggs, 932 So. 2d 95, 98 (Ala. 2005).

In these cases, the question is whether the mother's death during the pendency of her appeals of the judgments that terminated her parental rights rendered the appeals moot. This court has considered a similar issue in C.J. v. T.J., 225 So. 3d 115 (Ala. Civ. App. 2016). In that case, a juvenile court entered a judgment terminating the parental rights of C.J., the mother in that case, to her minor child, and C.J. appealed. While the appeal was pending in this court, C.J. died, and her attorney filed in this court a suggestion of death and a motion to dismiss C.J.'s appeal. 225 So. 3d at 116. This court held that C.J.’s appeal of the judgment terminating her parental rights was not automatically mooted because that judgment also implicated the rights of C.J.’s minor child, explaining:

"Although this state has not considered the specific question whether the death of a parent while an appeal from a termination-of-parental-rights judgment is pending moots that appeal, other states have considered that question. Courts in Georgia, Oregon, and New Jersey have held that the intervening death of a parent renders moot that parent's appeal from a termination-of-parental-rights judgment. SeeIn re A.O.A., 172 Ga. App. 364, 323 S.E.2d 208 (1984) ; In re Holland, 290 Or. 765, 625 P.2d 1318 (1981) ; and New Jersey Div. of Youth & Family Servs. v. P.F. (In re I.R., a minor), (Docket No. FN-16-116-07) (N.J. Super. Ct. App. Div., Jan. 2, 2009) (not reported in A.2d).

"In In re A.O.A., the Court of Appeals of Georgia held, without discussion, that the father's appeal from a judgment terminating his parental rights had been mooted as a result of the father's intervening death. 172 Ga. App. at 364, 323 S.E.2d at 208-09. In In re Holland, the Supreme Court of Oregon held that the appeal filed by the mother from a judgment terminating her parental rights to her children had been mooted by the mother's intervening death, but the court noted that ‘[t]he rights of the children to any benefits which may accrue from their relationship to their mother (i.e., insurance or social security proceeds) have not been asserted, but they will not be foreclosed by a determination that their mother's case is moot.’

290 Or. at 768, 625 P.2d at 1319. In P.F., the appellate division of the Superior Court of New Jersey held that the appeal filed by a parent, who subsequently died while the appeal was pending, did ‘not have any practical effect on the initial controversy,’ and it dismissed the appeal as moot.

"On the other hand, courts in Florida and Texas have held that the intervening death of a parent following the filing of a notice of appeal from a judgment terminating the parent's parental rights does not necessarily moot that parent's appeal. SeeC.A. v. Department of Children & Families, 16 So. 3d 888 (Fla. Dist. Ct. App. 2009) ; and In re S.N., 272 S.W.3d 45 (Tex. App. 2008).

"In C.A., the Fourth District Court of Appeals of Florida considered the question whether the father's death, which resulted from an automobile

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