M.L.W. v. J.W.

385 So.3d 99

M.L.W.

v.J.W.

CL-2022-0640

Court of Civil Appeals of Alabama.

May 12, 2023

Patricia K. Farmer, Athens, for appellant.

Submitted on appellant’s brief only.

MOORE, Judge.

M.L.W. ("the mother") appeals from a judgment entered by the Limestone Juve- nile 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.

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 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 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 stat- ed that "temporary" custody would remain with the maternal grandfather until the adjudicatory hearing took place. On August 30, 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 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

[1, 2] "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. 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).

[3] 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., 377 So.3d 524 (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 LJ.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.

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 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.

[4] 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 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 judg- ments. 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...