N.B. v. J.C.R. (Ex parte N.B.)

204 So.3d 887

Ex parte N.B.

(In re N.B.

v.J.C.R.).

2150281.

Court of Civil Appeals of Alabama.

March 18, 2016.

William N. Dunn, Birmingham, for petitioner.

Erin B. Welborn, Columbiana, for respondent.

DONALDSON, Judge.

We are presented with the issue whether a petition filed in a juvenile court, purportedly initiating a dependency action, may be transferred by the juvenile court to a circuit court if it can be determined, based on the petition and other pleadings, that the juvenile court does not have jurisdiction because the proceedings would not result in an adjudication of dependency. In this case, N.B. ("the mother"), the mother of J.R. ("the child"), has petitioned this court to issue a writ of mandamus directing the Shelby Juvenile Court ("the juvenile court") to set aside its December 21, 2015, order transferring the case from the juvenile court to the Shelby Circuit Court ("the circuit court"). Based on Ex parte E.S., 205 So.3d 1245 (Ala.2015), we hold that, pursuant to § 12–11–11, Ala.Code 1975, the juvenile court had the authority to transfer the case.

The child was born in 2001. The mother and the putative father of the child, J.C.R. ("the putative father"), are not married. The putative father resides in Alabama. The child lives with the mother in Florida. On July 27, 2015, the putative father filed a petition in the juvenile court seeking to have the child declared dependent and seeking custody of the child ("the dependency/custody action"). The putative father alleged that the mother left the child in Alabama with him in July 2014 and that, after the child had visited the mother in Florida in June 2015, the mother had refused to return the child to him. Along with his petition, the putative father filed an ex parte motion seeking pendente lite custody of the child.

On July 27, 2015, the putative father filed a separate petition in the Shelby District Court ("the district court") seeking to establish his paternity of the child, to obtain custody of the child, and to require the mother to pay him child support ("the paternity action"). There is no indication that the putative father's paternity has been established. Based on the contentions of the parties and the materials presented to this court, it appears that the paternity action remains pending. Regardless, the paternity action is not at issue in this mandamus proceeding. On July 27, 2015, the juvenile court, in the dependency/custody action, appointed a guardian ad litem for the child and set a hearing on the putative father's motion for pendente lite custody. The mother filed a motion to continue that hearing, which the juvenile court granted. The juvenile court found the mother to be indigent and appointed an attorney to represent her in the case. After a hearing at which both parties were present, the juvenile court entered an order denying the putative father's request for pendente lite custody of the child, but granting the putative father pendente lite visitation with the child on school holidays.

The trial date was set for November 30, 2015. On November 25, 2015, the mother filed a motion seeking to reset the trial date, and, at her request, the trial was continued to December 21, 2015.

On December 20, 2015, the mother filed a motion to dismiss the case, arguing that, the child, who was over 12 years old at the time the petition was filed, never received proper service of process pursuant to Rule 13(A)(1), Ala. R. Juv. P., which provides, in pertinent part: "After a petition alleging that a child is ... dependent ... has been filed, summonses shall be issued to the child, if he or she is 12 or more years of age...." She also argued that the allegations in the putative father's petition presented only a custody dispute between the parents and that the facts alleged in the petition were insufficient to invoke the subject-matter jurisdiction of the juvenile court to adjudicate the child dependent.

On December 21, 2015, the juvenile court entered an order, finding in part:

"Based upon a review of the pleadings, the Court finds that the allegations within said Petition constitute nothing more than a custody petition between two parents, that any allegations which tend to allege the child is dependent merely constitute allegations as why the petitioner should obtain custody as opposed to the respondent, and that the allegations of dependency merely recite the definition of a dependent child under Section 12–15–102(8)(a) of the Code of Alabama, not specifically alleging any specific allegations of dependency that can be proven in this matter.

"As the Court finds that this matter constitutes a custody case between two parents, it is the order of this Court that this matter be and is hereby transferred to the Circuit Court of Shelby County, Alabama for further proceedings."

On December 26, 2015, the mother filed a motion to set aside the juvenile court's December 21, 2015, order, contending in part that the juvenile court should have dismissed the putative father's petition, that the transfer to circuit court violates the statutory requirement of confidentiality imposed in juvenile cases, and that the juvenile court lacked personal jurisdiction over her and over the child. After the juvenile court denied her motion, the mother filed her petition in this court on December 30, 2015, seeking a writ of mandamus directing the juvenile court to set aside its order transferring the case to the circuit court. In her mandamus petition, the mother raises the same arguments she asserted in her motion to set aside. The putative father has filed an answer to the petition and a brief in support of his position.

A petition for the writ of mandamus is an appropriate means to seek to set aside an order transferring a case to another court.

" ‘Where the trial court has improperly ordered a transfer, mandamus against the transferor court is an appropriate remedy, notwithstanding the fact that an order has been entered which moves the case to the transferee court. The transferee court lacks authority to consider a motion to retransfer an action to the county in which it was initially filed. Mandamus to the transferor court is the appropriate avenue for seeking redress of any error in the transfer.’

"2 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated § 82.4, p. 553 (3d ed.1996) (citations omitted)."

Ex parte MedPartners, Inc., 820 So.2d 815, 821 (Ala.2001).

" ‘ "Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." ’ "

Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala.2008) (quoting Ex parte Perfection Siding, Inc., 882 So.2d 307, 309–10 (Ala.2003), quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995) ).

The mother argues that the juvenile court lacked authority to transfer the case to the circuit court and that the juvenile court was required, instead, to dismiss the case upon finding that it lacked subject-matter jurisdiction. Juvenile courts have "exclusive original jurisdiction" over "proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision." § 12–15–114(a), Ala.Code 1975. It is well established that

" ‘[i]f a juvenile court determines that the child is not dependent, the court must dismiss the dependency petition.’ K.C.G. v. S.J.R., 46 So.3d 499, 501–02 (Ala.Civ.App.2010). See also § 12–15–310(b), Ala.Code 1975 (‘If the juvenile court finds that the allegations in the [dependency] petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition.’). When a juvenile court determines that a child is not dependent, the juvenile court ‘lack[s] jurisdiction to enter a judgment affecting the custody of the child.’ L.R.J. v. C.F., 75 So.3d 685, 687 (Ala.Civ.App.2011) (citing T.B. [v. T.H. ], 30 So.3d [429] at 431 [ (Ala.Civ.App.2009) ] )."

J.A. v. C.M., 93 So.3d 953, 954–55 (Ala.Civ.App.2012).

In this case, the juvenile court determined that the pleadings did not sufficiently allege that the child was dependent and that the proceedings would not result in an adjudication of dependency because the case involved only a custody dispute between the child's parents. "A dependency action shall not include a custody dispute between parents." § 12–15–114(a). Without any other independent basis for assuming jurisdiction, the juvenile court lacked subject-matter jurisdiction to adjudicate a petition for custody. See Ex parte M.M.T., 148 So.3d 728, 733 (Ala.Civ.App.2014) (holding that juvenile court lacked subject-matter jurisdiction over petition that sought determination of a custody dispute). Instead of dismissing the case, however, the juvenile court entered an order transferring the case to the circuit court.

Because the underlying action is a custody dispute between the parents, the circuit court has exclusive jurisdiction. " ‘Where the contest is between the parents, or between a parent and a third person, as to who should have the control and care of the minor, the court exercising general civil jurisdiction is the proper and exclusive tribunal to decide the issue.’ " Ex parte K.L.P., 868 So.2d 454, 456 (Ala.Civ.App.2003) (quoting 47 Am.Jur.2d Juvenile Courts § 4 (1995) ). The mother claims, however, that the juvenile court had no authority to transfer the case to the circuit court.

"[I]t is well established that ‘ " ‘[u]nless expressly authorized so to do, a court has no authority to transfer a cause from itself to another court, and thereby give the other court possession of the case to hear and determine it, although the other court would have had jurisdiction of the cause if it had come to it by due process.’ 21 C.J.S. Courts § 502, p. 769...." ' Ex parte Boykin, 611 So.2d 322, 326 (Ala.1

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