R.J. v. J.N.M.W.

• Decision Date: 21 May 2021
• Docket Number: 2190717
• Citation: 339 So.3d 935
• Parties: R.J. and D.J. v. J.N.M.W. and R.T.W.
• Court: Alabama Court of Civil Appeals

339 So.3d 935

R.J. and D.J.

v.J.N.M.W. and R.T.W.

2190717

Court of Civil Appeals of Alabama.

May 21, 2021

Lisa M. Ivey of Stubbs, Sills & Frye, P.C., Anniston, for appellants.

Submitted on appellants' brief only.

MOORE, Judge.

R.J. and D.J. ("the great-grandparents") appeal from a judgment of the Walker Circuit Court ("the circuit court") purporting to deny their claim for custody of their great-grandchild, L.W. ("the child"). We determine that the judgment is void and dismiss the appeal.

Procedural Background

The background pertinent to the disposition of this appeal is as follows. In October 2019, the great-grandparents filed in the circuit court a complaint against J.N.M.W. ("the mother") and R.T.W. ("the father"), seeking to obtain custody of the child; they alleged, among other things:

"2. The ... child has lived with the [great-grandparents] off and on since she was six weeks old.

"3. The Mother suffers from mental illness. She has been diagnosed with Borderline Personality Disorder

, Depression and possible Schizophrenia. She was hospitalized at Walker Baptist Behavioral Medicine Unit September 3, 2019 through September 9, 2019 due [to] her threatening to hurt herself. The Mother will not take her medication as prescribed. ...

"4. The Mother leaves the ... child for long periods of time with the [great-grandparents]. The Mother will go weeks at a time without seeing the ... child. When the Mother does visit with the ... child it is for approximately one hour at a time.

"5. The Mother does not have consistent employment. She has been employed with at least fifteen different places since the ... child was born. The [great-grandparents] believe she is currently working ... as a stripper three nights a week.

"6. The Mother does not have a home of her own. She lives with relatives and friends. The relatives she stays with have criminal records which include domestic violence charges. The Mother just recently told the [great-grandparents] she is moving to Birmingham to live with her aunt. She has further indicated she wants to move herself and the ... child to Florida with her boyfriend[, whom] she has known for approximately three (3) weeks.

"7. The Father ... is an alcoholic. He suffers from mental illness and has anger problems. He does not have a home of his own. He comes to the [great-grandparents'] home to shower and sleeps at his mother's home or in his car. He is employed part time at Burger King and at a tattoo shop in Cullman ....

"8. In April 2019, the ... child was sexually abused by one of her father's friends while in the father's care. The [great-grandparents] made the police report, talked to the Walker County Department of Human Resources and [attended] appointments with the Walker County Children's Advocacy Center. The Mother scheduled approximately two of the [Children's Advocacy Center] interviews but cancelled each of those appointments. Neither parent participated or assisted in what was required during the investigation of the charges.

"9. The ... child is fearful while in the care of the Mother. She acts out verbally and physically when she thinks she will have to be in her Mother's care.

"10. The Father and the Mother have failed to provide financial support for the minor child.

"11. The [great-grandparents] are the fit and proper people to have custody of the child. Both [great-grandparents] are willing and able to physically, mentally and financially support the ... child. They have been caring for the ... child's physical, mental and financial well-being since she was born.

"12. The [great-grandparents] believe that immediate and irreparable harm is likely to occur to the ... child[ ] in [the] absence of an temporary order granting them custody."

The circuit court awarded the great-grandparents pendente lite custody of the child. The mother and the father filed an answer to the complaint. On June 8, 2020, the circuit court tried the case. On June 10, 2020, the circuit court entered a judgment determining that the great-grandparents had not met their burden of proving that the custody of the child should be transferred to them. The circuit court ordered the child to be returned to the custody of the mother and the father, and it dismissed the great-grandparents’ complaint. The great-grandparents filed a postjudgment motion to alter, amend, or vacate the judgment, which the circuit court denied on June 15, 2020. The great-grandparents filed their notice of appeal on June 26, 2020.

Discussion

On appeal, the great-grandparents assert that the circuit court erred in denying their claim for custody of the child, arguing that the evidence proved that the mother and the father had voluntarily forfeited custody of the child, that the mother and the father were unfit to exercise custody of the child, and that the best interests of the child would be served by awarding the great-grandparents custody of the child. See Ex parte Terry, 494 So. 2d 628 (Ala. 1986). We do not consider the merits of their argument, however, because we conclude that the judgment is void based on the circuit court's lack of subject-matter jurisdiction.

Although neither party has raised before this court the issue whether the circuit court had subject-matter jurisdiction to adjudicate the great-grandparents’ complaint, the absence of subject-matter jurisdiction cannot be waived, and it is the duty of an appellate court to notice the absence of subject-matter jurisdiction. See Burns v. Ashley, 274 So. 3d 970, 972 (Ala. 2018). If the circuit court lacked subject-matter jurisdiction to consider the great-grandparents’ complaint, then the judgment entered on June 10, 2020, is void and will not support this appeal. Id. "A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment." Vann v. Cook, 989 So. 2d 556, 559 (Ala. Civ. App. 2008).

Section 12-15-114(a), Ala. Code 1975, a part of the Alabama Juvenile Justice Act ("the AJJA"), § 12-15-101 et seq., Ala. Code 1975, provides, in pertinent part: "A juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision." Because § 12-15-114(a) vests exclusive jurisdiction over dependency proceedings in the juvenile courts, a circuit court has no subject-matter jurisdiction over proceedings in which a child is alleged to be dependent. See C.D.S. v. K.S.S., 963 So. 2d 125, 130 n.1 (Ala. Civ. App. 2007) (applying former § 12-15-30(a), Ala. Code 1975, which contained substantively identical language). "It is well settled that a circuit court lacks original subject-matter jurisdiction to adjudicate the custody of a child in a proceeding in which the child has been alleged to be dependent." Ex parte L.B.S., [Ms. 2200091, Feb. 19, 2021] ––– So. 3d ––––, ––––, 2021 WL 650256 (Ala. Civ. App. 2021) ; see also A.G. v. Ka.G., 114 So. 3d 24, 27 (Ala. 2012) (holding that a circuit court has no jurisdiction over a complaint asserting facts that, if proven to be true, would indicate the dependency of a child).

Under § 12-15-121(c)(1), Ala. Code 1975, and Rule 12(A), Ala. R. Juv. P., a party alleges the dependency of a child when the party sets forth facts in a complaint or a petition that indicate that the child is in need of care or supervision based on the existence of one or more of the circumstances set forth in § 12-15-102(8), Ala. Code 1975.¹ In Ex parte L.E.O., 61 So. 3d 1042 (Ala. 2010), our supreme court determined that an allegation that a child is "in need of care or supervision" is implied in a complaint or a petition that asserts facts suggesting the dependency of a child. 61 So. 3d at 1047 n.4 (citing J.W. v. N.K.M., 999 So. 2d 526 (Ala. Civ. App. 2008) ). This court has consistently held that a complaint or a petition alleges the dependency of a child, so as to fall within the exclusive jurisdiction of the juvenile courts, when it avers facts that, if proven to be true, would establish the dependency of the child under § 12-15-102(8), regardless of the particular language pleaded. See, e.g., C.E. v. M.G., 169 So. 3d 1061, 1064 (Ala. Civ. App. 2015) ; T.K. v. M.G., 82 So. 3d 1, 3 (Ala. Civ. App. 2011) ; P.S.R. v. C.L.P., 67 So. 3d 917, 921 (Ala. Civ. App. 2011) ; B.R.G. v. G.L.M., 57 So. 3d 137 (Ala. Civ. App. 2010) ; M.B. v. R.P., 3 So. 3d 237 (Ala. Civ. App. 2008) ; W.T.H. v. M.M.M., 915 So. 2d 64 (Ala. Civ. App. 2005) ; and L.L.M. v. S.F., 919 So. 2d 307 (Ala. Civ. App. 2005). This court recently summarized the law on this point as follows: "In deciding whether a pleading alleges the dependency of a child, so as to invoke the exclusive jurisdiction of a juvenile court, the court shall look to the substance of the pleading and not to the nomenclature employed by the pleader." A.M. v. A.K., [Ms. 2190617, Sept. 18, 2020] ––– So. 3d ––––, ––––, 2020 WL 5581691 (Ala. Civ. App. 2020).

In this case, the great-grandparents alleged that the mother and the father, because of mental illness, alcoholism, homelessness, and/or instability, could not provide adequate financial support and care for the child, that the father had subjected the child to sexual abuse through improper supervision of the child, and that the mother and the father had relinquished their parental responsibilities to the great-grandparents for long periods. In their complaint, the great-grandparents asserted facts that, if proven to be true, would establish the dependency of the child so as to invoke the exclusive jurisdiction of the juvenile court. See § 12-15-102(8) a.1., 2., 5., and 6.; and Ex parte L.E.O., supra.

In P.S.R. v. C.L.P., 67 So. 3d 917, 922 (Ala. Civ. App. 2011), P.S.R. filed a complaint in the Franklin Circuit Court requesting custody of her two grandchildren. She alleged, among other things, that the mother of the children had abandoned the...