C.E. v. M.G.

• Decision Date: 16 January 2015
• Docket Number: 2140008.
• Citation: 169 So.3d 1061
• Parties: C.E. v. M.G.
• Court: Alabama Court of Civil Appeals

169 So.3d 1061

C.E.

v.M.G.

2140008.

Court of Civil Appeals of Alabama.

Jan. 16, 2015.

Trey Malbrough of The Malbrough Firm LLC, Birmingham, for appellant.

Melvin Hasting, Cullman, for appellee.

Opinion

MOORE, Judge.

C.E., the mother of R.G. (“the child”), filed a petition seeking a writ of mandamus compelling the Walker Juvenile Court to vacate its September 23, 2014, order finding the child to be dependent and awarding “temporary custody” of the child to M.G., the child's father. For the reasons discussed infra, we treat the mother's petition as an appeal, and we affirm in part and reverse in part.

Background

In December 2008, the father's paternity of the child was adjudicated by the St. Clair Juvenile Court; in that action, the mother was designated as the child's primary physical custodian and the father was ordered to pay child support. On September 8, 2014, the father filed in the St. Clair Juvenile Court a verified petition alleging that the child was dependent and seeking custody of the child. In his petition, the father asserted that the mother and her husband, B.H., were abusing the child or using excessive corporal punishment on the child to the extent that the father had observed “marks and whelps” on the child's body the previous weekend. As a result, the father sought an ex parte order granting him temporary custody of the child on an emergency basis. On that same date, the St. Clair Juvenile Court transferred the father's petition to the Walker Juvenile Court based on the father's assertion that neither parent continued to reside in St. Clair County.

On September 9, 2014, after the action had been transferred to the Walker Juvenile Court (“the juvenile court”), the father filed an amended petition to modify custody and an “amended motion for ex parte pendente lite custody”; that petition and that motion were unverified. On September 10, 2014, the juvenile court entered an ex parte “temporary custody order” placing the child with the father on an emergency basis. In that same order, the juvenile court scheduled a hearing for the following day, i.e., September 11, 2014, and appointed a guardian ad litem to represent the child's best interests.

On September 11, 2014, the day of the hearing, the father filed a verified amended petition to modify custody and a verified “amended motion for ex parte pendente lite custody.” On September 23, 2014, the juvenile court entered an order indicating that, at the time of the September 11, 2014, hearing, the mother's attorney had been running late due to a scheduling conflict and that, after waiting a reasonable amount of time, the juvenile court had proceeded to hear evidence without the mother's attorney being present. In its order, the juvenile court found the child to be dependent, awarded physical custody of the child to the father pending a final hearing, ordered the child's stepfather not to discipline the child in any form, and scheduled a final hearing for November 6, 2014.

On October 7, 2014, the mother timely filed her petition for a writ of mandamus; as noted earlier, and for the reasons discussed infra, we have elected to treat the mother's petition as an appeal. The mother asserts that, because, she alleges, the father's pleadings were unverified, the juvenile court never acquired subject-matter jurisdiction and that, therefore, the juvenile court's September 10, 2014, order awarding the father ex parte emergency custody and all subsequent orders were void; that the juvenile court violated her due-process rights by conducting the September 11, 2014, hearing without her attorney present; and that the juvenile court violated her due-process rights because she was given no notice that the juvenile court would address the child's dependency at the September 11, 2014, hearing.

Analysis

Section 12–15–114(a), Ala.Code 1975, provides that “[a] dependency action shall not include a custody dispute between parents.” Because the father, the noncustodial parent, alleged in his initial petition that the child was dependent as to the mother, the child's custodial parent, we must consider whether the juvenile court properly exercised jurisdiction over the father's petition.

In S.K. v. N.B., 160 So.3d 27 (Ala.Civ.App.2014), the father in that case filed a dependency petition alleging that the mother's boyfriend was abusing the parties' child, that the child was fearful of being in the mother's home, and that the Montgomery County Department of Human Resources had placed the child in his custody pursuant to a safety plan. Id. at 29. This court concluded that, although the father's allegations were directed at the child's custodial parent, they were sufficient to invoke the juvenile court's dependency jurisdiction.¹ Id. at 32. See also T.K. v. M.G., 82 So.3d 1 (Ala.Civ.App.2011) (father's allegations that mother was using drugs in the presence of the parties' child were sufficient to trigger juvenile court's dependency jurisdiction despite fact that both parents were legally obligated to care for the child).

The father's petition, like the one in S.K., supra, alleged that the mother and the child's stepfather had abused the child to the point of leaving welts and marks on the child and causing the child to be fearful. As in S.K., supra, we conclude that, in this case, the father's allegations fell within the juvenile court's dependency jurisdiction.² See, e.g., Ala.Code 1975, § 12–15–102(8) (defining a “dependent child”).

We also must consider whether the mother's petition should be treated as an appeal. The father filed an “emergency” petition for temporary custody of the child, alleging that the child was in imminent threat of physical harm due to the abuse or excessive corporal punishment meted out by the mother and/or the mother's husband. Alabama Code 1975, § 12–15–138, provides that a juvenile court may, on an emergency basis, enter an order to protect the health and safety of a child who is the subject of a dependency proceeding.

According to Ala.Code 1975, § 12–15–139,

“[a] protection or restraint order may be issued by the juvenile court, after notice and a hearing, upon proper showing by a preponderance of the evidence that an order is necessary to protect the health or safety of the child subject to a juvenile court proceeding or is otherwise in the best interests of the child.”

We conclude that the juvenile court conducted the September 11, 2014, hearing for the purpose of complying with the foregoing statutory provisions.

In its September 23, 2014, order, the juvenile court granted the father's petition for temporary custody, and it also entered certain injunctions designed to protect the health and safety of the child. See Ala.Code 1975, § 12–15–138 (“The juvenile court may, at any time after a dependency petition has been filed, or on an emergency basis, enter an order of protection or restraint to protect the health or safety of a child subject to a proceeding.”); Ala.Code 1975, § 12–15–140(a) (“The protection or restraint order may set forth reasonable conditions of behavior to be observed by a person who is a parent, legal guardian, legal custodian, or other person legally responsible for the care of the child subject to a juvenile court proceeding, or the spouse of the parent, or spouse of any other person legally responsible for the care of the child, or relatives of any of the above, or residents of the home of the child, or any other person.”); and Ala.Code 1975, § 12–15–140(b) (listing various examples of restraint orders that a juvenile court may impose). Rule 4(a)(1)(A), Ala. R.App. P., provides that a party may appeal from an interlocutory order granting or refusing an injunction within 14 days. Because the juvenile court's September 23, 2014, order transferred custody of the child to the father and placed certain restraints on the mother and her husband as to their care of the child pursuant to the foregoing statutory provisions, we conclude that the mother was entitled to appeal from that order. We, therefore, treat her mandamus petition as an appeal under Rule 4(a)(1)(A), Ala. R.App. P.

On appeal, the mother first asserts that the juvenile court's ex parte award of emergency custody to the father is void because, she alleges, the father's pleadings were unverified and, therefore, failed to trigger the juvenile court's emergency jurisdiction. Lack of subject-matter jurisdiction may be raised at any time, even for the first time on appeal. Ex parte Ortiz, 108 So.3d 1046, 1048 (Ala.Civ.App.2012). Alabama Code 1975, § 12–15–141, provides:

“The juvenile court may enter an ex parte order of protection or restraint on an emergency basis, without prior 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. 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.”

Although the mother correctly asserts that an emergency ex parte order of protection or restraint may be entered only if it is based upon “verified written or verbal evidence,” she incorrectly asserts that the father failed to file verified pleadings. The father's initial pleading, filed in the St. Clair Juvenile Court, was verified. In that verified petition, the father alleged that the child was being subjected to abuse in the mother's home and that an ex parte emergency order was necessary to protect the child. Thus, the father's initial pleading triggered the juvenile court's emergency jurisdiction, and, pursuant to § 12–15–141, the juvenile court was authorized to enter an emergency order of protection for the child. The fact that the father later filed an unverified amended petition and an unverified motion (which he verified by amendment...