D.P. v. Limestone County Dep. of Human Res.

• Decision Date: 02 July 2009
• Docket Number: 2080544.
• Citation: 28 So.3d 759
• Parties: D.P. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

28 So.3d 759

D.P. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES.

2080544.

Court of Civil Appeals of Alabama.

July 2, 2009.

Brian C.T. Jones, Athens, for appellant.

Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, staff atty., Department of Human Resources, for appellee.

THOMAS, Judge.

D.P. ("the father") appeals from a juvenile court's permanency-plan order relieving the Limestone County Department of Human Resources ("DHR") of the obligation to make reasonable efforts to reunite the father with R.A.C., his dependent son ("the child").

In April 2008, DHR filed a petition alleging that the child was dependent by virtue of the following circumstances: that the child's mother, L.S., had ongoing substance-abuse problems and had neglected him; that the mother's husband, R.S., was not the child's biological father; and that D.P., the child's alleged biological father, who had an extensive criminal record, had taken custody of the child. Following a hearing, the juvenile court determined that the child was dependent, awarded legal custody to DHR, and placed the child with maternal relatives. The court further ordered that paternity testing be conducted. That testing revealed that D.P. was indeed the biological father of the child, and the juvenile court formally adjudicated him to be the child's father.

In December 2008, DHR moved for a judicial determination that it was not obligated to make reasonable efforts to reunite the father and the child because, it alleged, the father had been charged in 1996 with capital murder and had been convicted in 1998 of manslaughter for causing the death of a former girlfriend's 20-month-old child. DHR's motion alleged that,

"pursuant to § 12-15-65(m)(2), Code of Alabama 1975, reasonable efforts shall not be required where a court of competent jurisdiction has determined that a parent has committed murder or voluntary manslaughter of another child."

The juvenile court set DHR's motion to be relieved of the obligation to make reasonable efforts to reunite the father and the child for a hearing on January 30, 2009. The record does not contain a transcript of that hearing, but the court issued an order following the hearing indicating that the court and counsel had discussed the fact that § 12-15-65(m)(2), Ala.Code 1975, does not, in fact, relieve DHR of the obligation to make reasonable efforts when a court of competent jurisdiction determines that a parent has "[c]ommitted murder or voluntary manslaughter of another child." (Emphasis added.) That statute applies when a parent has "[c]ommitted murder or voluntary manslaughter of another child of such parent" (emphasis added), whereas the Alabama Juvenile Justice Act of 2008 ("the current AJJA"), effective January 1, 2009, "expands the types of criminal offenses which, if committed by a parent of a child in foster care, excuses the state from making reasonable efforts...." See Alabama Juvenile Justice Act of 2008 Annotated Guide, p. 62 n.100 (Alabama Administrative Office of Courts, July 29, 2008). Section 12-15-312(c)(2), Ala.Code 1975, a part of the current AJJA, provides that DHR is excused from making reasonable efforts if a parent has, among other things, "[c]ommitted murder or manslaughter of another child ...." Section 12-15-312(c)(2) contains no requirement that the victim of murder or manslaughter be the parent's child.

During the January 30, 2009, hearing, DHR apparently argued that § 12-15-312(c)(2), the current AJJA provision, governed the juvenile court's decision on its motion, and the father argued that former § 12-15-65(m)(2) governed; the juvenile court's post-hearing order recited the following:

"The Court heard the position of all parties on the pending motions. The Court stated that it shall take the motion regarding reasonable efforts under advisement, and in doing so shall give all the attorneys the opportunity to submit a brief on the issues regarding the application of reasonable efforts under the former statute and the new [AJJA]."

DHR submitted a brief, arguing that § 12-15-312(c)(2) governed the case because it was the statute in effect at the time of the hearing on the motion. The record indicates that the father did not submit a brief.

On March 11, 2009, the juvenile court entered an order that provided, in pertinent part:

"A motion for a judicial finding that reasonable efforts are no longer required with the father of the minor child was filed by the Limestone County [DHR]. A hearing to render the decision on said Motion following submissions of memorandum of law was scheduled for this date. Also scheduled was a dispositional review hearing.

"....

"The Court stated that when it considered the motion regarding reasonable efforts it considered whether § 12-15-65(m)(2), Code of Alabama (1975), or § 12-15-312(c)(2), Code of Alabama (1975), applied. The Court stated that based upon the memorandum of law submitted and the Court's own research, it shall Order that the new statute shall apply, and that reasonable efforts toward reunification with the father are no longer required.

"The [DHR] then announced the permanency plan to the Court, which is return to parent. Upon consideration of the same, it is, therefore, ORDERED, ADJUDGED, and DECREED by the Court that the Motion is hereby GRANTED and that reasonable efforts toward reunification of the minor child with his father ... are no longer required.

"It is FURTHER ORDERED BY THE COURT that the permanency plan for [the child] is return to a parent."

On April 1, 2009, the clerk of this court requested that the parties submit letter briefs addressing whether the juvenile court's March 11, 2009, order was a final judgment that would support an appeal. On April 10, 2009, the father moved this court to invest the juvenile court with temporary jurisdiction to issue an amended order; on April 13, 2009, this court reinvested the juvenile court with jurisdiction so that it could enter an amended order. On April 7, 2009, the juvenile court entered an amended order stating, in pertinent part, that "[t]his order represents a final order on the motion for judicial finding that reasonable efforts are no longer required as to [the father]."

Finality

Because "`jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu,'" Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)), we first consider whether this court has jurisdiction to entertain the father's appeal. An appeal ordinarily lies only from a final judgment. Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). Rule 28(A), Ala. R. Juv. P., provides, in pertinent part:

"(1) Appeals from final orders, judgments, or decrees of the juvenile court shall be to the appropriate appellate court, subject to the Alabama Rules of Appellate Procedure, if:

"(a) A record certified as adequate by the juvenile court judge¹ or a stipulation of facts is available and the right to a jury trial has been exercised or waived by all parties entitled thereto; or,

"(b) The parties stipulate that only questions of law are involved and the juvenile court certifies the questions."

"A final judgment is one `that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.'" Wright v. Wright, 882 So.2d 361, 363 (Ala.Civ.App.2003) (quoting Bean v. Craig, 557 So.2d at 1253).

Although a juvenile court's orders in a dependency case are, in one sense, never "final" because the court retains jurisdiction to modify its orders upon a showing of changed circumstances, see C.L. v. D.H., 916 So.2d 622 (Ala.Civ.App. 2005); Committee Comments, Rule 4, Ala. R.App. P., this court has always treated formal dependency adjudications as final and appealable judgments despite the fact that they are scheduled for further review by the juvenile court. "Under our caselaw, a formal determination by a juvenile court of a child's dependency coupled with an award of custody incident to that determination will give rise to an appealable final judgment even if the custody award is denominated as a `temporary' award and further review of the case is envisioned. See Potter v. State Dep't of Human Res., 511 So.2d 190, 192 (Ala.Civ.App.1986); see also C.L. v. D.H., 916 So.2d 622, 625-26 (Ala.Civ.App.2005)."

J.J. v. J.H.W., 27 So.3d 519, 522 (Ala.Civ. App.2008).

In H.H. v. Baldwin County Department of Human Resources, 989 So.2d 1094, 1108 (Ala.Civ.App.2007)(opinion on return to remand) (authored by Moore, J., with two judges concurring in the result), this court explained that a permanency hearing is statutorily mandated as the means by which the juvenile court is to determine the "permanent disposition" of the child. In two other recent cases, Judge Moore issued special writings outlining a shift in procedure with respect to dependency/termination-of-parental-rights cases that, he perceived, had been accomplished by our legislature's amendment of the Alabama Juvenile Justice Act of 1990 ("the former AJJA"), § 12-15-1 et seq., Ala.Code 1975, and the Child Protection Act ("CPA"), § 26-18-1 et seq., Ala.Code 1975, in order to comply with federal legislation known as the Adoption and Safe Families Act ("ASFA"), 42 U.S.C. § 671 and § 675; in separate special writings in those cases, Judge Bryan and Judge Thomas agreed with Judge Moore as to this issue. See T.V. v. B.S., 7 So.3d 346 (Ala.Civ.App. 2008), and A.D.B.H. v. Houston County Dep't of Human Res., 1 So.3d 53 (Ala.Civ. App.2008).

"In a permanency hearing, the juvenile court is to `determine' which of several custodial arrangements—return to the parent, referral for termination of parental rights and adoption, or placement with a relative or other legal custodian— `shall be' the permanency plan. Id. The purpose of requiring the 12-month permanency hearing is to comply with the policy behind the ASFA to ensure `that children are...