Ex parte V.M.
| Decision Date | 02 December 2022 |
| Docket Number | CL-2022-0930 |
| Parties | Ex parte V.M. (In re: T.K. v. V.M.) |
| Court | Alabama Court of Civil Appeals |
(Jefferson Juvenile Court, Bessemer Division: CS-22-900120)
PETITION FOR WRIT OF MANDAMUS
On April 18, 2022, T.K. ("the presumed father") filed in the Bessemer Division of the Jefferson Juvenile Court ("the juvenile court") a verified complaint seeking an adjudication of his paternity of R.L.T.K. ("the child") based on his allegation that he was a presumed father of the child, pursuant to Ala Code 1975, § 26-17-204(a)(5). He alleged that he had received the child into his home and had held out the child as his natural child. In his complaint, the presumed father also sought an award of joint custody of, or visitation with, the child.[1]Contemporaneously, the presumed father filed an unverified emergency motion for custody, in which he alleged that the child's mother, V.M. ("the mother"), "has communicated that she is in the process of relocation … out of [the] state [of Alabama] to Oregon … with the intent to remain there" and that the mother "is unstable physically and mentally and is not fit to properly care for the child[]." On May 6, 2022, a juvenile-court referee held a hearing, at which the presumed father testified; following that hearing, the referee entered an order awarding the presumed father pendente lite custody of the child. See Ala. Code 1975, § 12-15-106 (permitting the appointment of a juvenile-court referee to handle certain juvenile and child-support cases). In that order, the referee stated that "the parties and [the] child[] resided in Alabama for approximately the past three years, and the mother left the state with the child[] following the filing of [the presumed father's complaint]." The juvenile-court judge ratified the referee's order on the same day that it was entered.
Although, in the complaint, the presumed father listed an address in Bessemer as the mother's address, the mother was served on April 24, 2022, by a private process server in the State of Oregon. Thereafter, in May 2022, the mother filed a motion to dismiss the presumed father's complaint, which she subsequently amended and verified, arguing that she and the child were residents of Oregon and not Alabama and that they had been visiting Alabama in April 2022 until they returned to Oregon on April 16, 2022. The mother attached to her motion the child's Oregon birth certificate, a lost-baggage claim form indicating that the lost-baggage claim had arisen on April 16, 2022, and a flight confirmation for a flight from Birmingham to Oregon on April 16, 2022.
The referee held a hearing on the mother's motion to dismiss on June 10, 2022. At that hearing, the parties testified and presented documentary evidence. In an order entered on the same day as the hearing, the referee stated: "Based on testimony and evidence, the court finds that Oregon is the home state of the … child … and this court lacks subject-matter jurisdiction over that child's custody under the [Uniform Child Custody Jurisdiction and Enforcement Act, Ala. Code 1975, § 30-3B-101 et seq.]." Thus, the referee dismissed the presumed father's complaint. The juvenile-court judge ratified the referee's order on June 11, 2022.
On June 16, 2022, the presumed father filed a motion for a rehearing of the referee's order, pursuant to Ala. Code 1975, § 12-15-106(e) and § 12-15-106(f), a part of the Alabama Juvenile Justice Act, Ala. Code 1975, § 12-15-101 et seq.[2] In that motion, the presumed father alleged that the evidence at the hearing before the referee had "revealed that the [mother and the child] had been Alabama residents for six months prior to the [presumed father's] filing his [complaint]." The juvenile-court judge granted the presumed father's motion for a rehearing and set the rehearing for July 21, 2021.
On July 8, 2022, the presumed father filed a motion for a judicial conference between the juvenile-court judge and the Oregon court pursuant to Ala. Code 1975, § 30-3B-206, a part of the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), Ala. Code 1975, § 30-3B-101 et seq., and which requires the courts of states in which simultaneous custody proceedings are pending to communicate. In that motion, the presumed father alleged that the mother had initiated an action in an Oregon court seeking custody of the child and that the mother had initiated an action in an Alabama circuit court to register and enforce an order entered in the Oregon action.[3] The mother responded to the presumed father's motion by agreeing to the need for a conference between the Oregon court and the juvenile-court judge pursuant to the UCCJEA.
According to the unrefuted allegations made by the mother in her mandamus petition,[4] at the rehearing on July 21, 2022, the juvenile-court judge did not take any sworn testimony or receive any evidence. In addition, according to the mother's petition, although the June 10, 2022, hearing before the referee had been recorded, the juvenile-court judge had neither ascertained whether that record was adequate nor reviewed it, in contravention of § 12-15-106(f). Instead, after receiving arguments of counsel and soliciting unsworn responses from the parties to some questions, the juvenile-court judge entered an order on July 23, 2022, in which she implicitly concluded that the juvenile court had subject-matter jurisdiction to proceed with the presumed father's paternity and custody action. In the July 23, 2022, order, the juvenile-court judge stated that the presumed father's counsel had argued that "the mother has resided here since 2019" and that, "although the … child was born in Oregon, the mother returned to Alabama after the birth of the child and resumed living with the [presumed] father." The July 23, 2022, order further states that the mother's attorney argued that "Oregon is the [mother's] home state." In the order, the juvenile-court judge commented that "in order to be a residence [sic] of Oregon one must reside there 12 consecutive months" and concluded that "the [mother] has resided in Alabama for more than 180 days an[d] not 12 consecutive months in Oregon." The July 23, 2022, order does not indicate when the child, who was born in Oregon in August 2020, began residing in Alabama or determine his home state under Ala. Code 1975, § 30-3B-102(7), which defines the term "home state." The order entered by the juvenile-court judge also contains the following provision:
On July 27, 2022, the presumed father filed an emergency motion seeking to hold the mother in contempt and for pendente lite custody. In that motion, he alleged that the mother had left the state with the child in contravention of the July 23, 2022, order prohibiting her from doing so. The juvenile-court judge entered an order on July 28, 2022, granting the presumed father's motion, stating in that order that the July 23, 2022, order was intended to prohibit the defendant, who was the mother, and not the plaintiff, who was the presumed father, from leaving the state with the child. That order also stated that the juvenile-court judge intended to notify the FBI about the mother's actions.
The presumed father filed a motion for a pickup order on August 1, 2022, in which he sought aid in securing the custody of the child from the mother, both of whom were then in Oregon. The mother objected to the presumed father's motion, complaining that the language of the July 23, 2022, order had not restrained her from leaving the state with the child. The juvenile-court judge entered the requested pickup order on August 2, 2022, and she corrected that pickup order on August 5, 2022. In both the August 2, 2022, and August 5, 2022, pickup orders, the juvenile-court judge awarded the presumed father pendente lite custody of the child. In the August 5, 2022, pickup order, the juvenile-court judge found the mother in contempt.
On August 5, 2022, the mother filed a motion seeking reconsideration of the July 23, 2022, order insofar as it implicitly concluded that the juvenile court had jurisdiction under the UCCJEA. In that motion, the mother specifically argued that the juvenile-court judge had failed to properly comply with § 12-15-106(f), had failed to properly apply the UCCJEA, and had lacked temporary emergency jurisdiction under Ala. Code 1975, § 30-3B-204, because, she stated, she and the child had not been in Alabama on the date that the presumed father filed his complaint.[5] The mother also filed a motion to set aside the pickup orders entered by the juvenile-court judge. In that motion, she argued that the juvenile-court judge could not enter the pickup orders because the presumed father's August 1, 2022, motion had failed to comply with Rule 65, Ala. R. Civ. P., "as it seeks injunctive relief without being accompanied by an affidavit."[6] In addition, she contended that, because the child had been born out of wedlock, she was the child's only legal custodian pursuant to Alabama law. Citing Ex parte Russell, 911 So.2d 719 (Ala. Civ. App. 2005), the mother further argued in her motion that the juvenile-court judge had violated her due-process rights because the judge had not held a hearing and that the judge could not modify custody of the child, even temporarily, without affording her a hearing. On August 8, 2022, the juvenile-court judge issued separate orders denying the mother's motion to reconsider and her motion to set aside the pickup orders.
The mother filed her petition for the writ of mandamus with this court on August 22, 2022. In the presumed father...
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