T.C. v. Mac.M.

• Decision Date: 18 November 2011
• Docket Number: 2100037.
• Citation: 96 So.3d 115
• Parties: T.C. v. Mac.M. and Mar.M.
• Court: Alabama Court of Civil Appeals

96 So.3d 115

T.C.

v.Mac.M. and Mar.M.

2100037.

Court of Civil Appeals of Alabama.

Nov. 18, 2011.

Austin Burdick, McCalla, for appellant.

Lori Ann Frasure of Frasure Law, LLC, Calera, for appellees.

Andrew D. Wheeler of The Wheeler Firm, LLC, Bessemer, guardian ad litem for A.J.C.

On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of September 23, 2011, is withdrawn, and the following substituted therefor.

On February 2, 2010, Mac.M. (“the maternal grandfather”) and Mar.M. (“the maternal grandmother”) filed a petition alleging that A.J.C. (“the child”) was dependent as a result of the drug use of the child's parents, J.D.C. (“the mother”) and T.C. (“the father”). The maternal grandparentssought an award of custody of the child and an award of supervised visitation for the parents. The maternal grandparents also moved for an award of pendente lite custody of the child pending a determination on their dependency petition. On March 11, 2010, the juvenile court awarded the maternal grandparents pendente lite custody of the child. On March 23, 2010, the juvenile court entered another, more detailed order continuing the award to the maternal grandparents of pendente lite custody of the child and awarding the parents supervised visitation pending a later review hearing.¹

On April 22, 2010, the child's guardian ad litem filed a suggestion of death indicating that the mother had died. Shortly thereafter, the father filed a motion to modify the pendente lite award of supervised visitation. On June 9, 2010, the juvenile court entered another pendente lite order continuing custody of the child with the maternal grandparents and denying the father's motion to modify the award of supervised visitation.

In August 2010, Th.C. and G.C., the child's paternal grandparents, each moved to intervene in the dependency action, and each sought an award of visitation with the child. Their motions had not been ruled upon by the time the order at issue in this appeal was entered. C.C.S., the child's paternal aunt, filed a statement in support of the father on a form designated as a “motion to intervene,” but the juvenile court denied that “motion” as not being, in substance, a motion to intervene.

On September 21, 2010, the juvenile court conducted an ore tenus hearing on the issue of the child's dependency. Much of the evidence at that hearing focused on the maternal grandparents' allegations that the father abused prescription medications and the father's denial of those allegations. The juvenile court specified during the hearing that, as an initial matter, it would consider only evidence pertaining to the issue of the child's dependency. After receiving such evidence, the juvenile court determined that the child was dependent, and it then offered to proceed to receive evidence pertaining to the disposition of the custody of the child. However, the maternal grandparents moved to continue the portion of the hearing pertaining to the disposition of the custody of the child. The juvenile court granted that motion and stated: “ I'm going to probably do a pendente lite” order.

On September 22, 2010, the juvenile court entered an order finding the child dependent. The father appealed the September 22, 2010, order to this court.

Although none of the parties has addressed this court's jurisdiction to consider this appeal, jurisdictional issues are of such importance that this court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997). As explained in this opinion, we conclude that the September 22, 2010, order is not final and, therefore, that it cannot support the appeal. See Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226, 229 (Ala.Civ.App.1998) (a nonfinal judgment will not support an appeal).

In this case, the juvenile court's September 22, 2010, order was entered on a standardized form. On that form, the juvenile court placed a check mark to indicate that the “child [was] found dependent.” A handwritten notation beside that determination states: “[At] time [of] petition child was dependent pendente lite.” In the September 22, 2010, order, the juvenile court made the following factual determination:

“Court heard testimony as to dependency. After sworn testimony and evidence, the court hereby finds the child ... dependent due [to] inability to discharge parental responsibilities as to [the] child because of use of high amounts of pain medications and muscle relaxers.

“Motion to intervene by [the paternal grandfather was] not served on [the maternal grandparents]. Therefore, [the maternal grandparents'] motion to continue as to disposition is granted. Motions to intervene as to [the paternal grandfather] and [the paternal grandmother] to be heard on 10/12/2010 [at] 10:00 a.m. Pending hearing, [guardian ad litem] to inquire as to [the paternal grandparents] and [paternal aunt] as well as father [to] provide prescriptions.”

(Emphasis added.) At the bottom of the September 22, 2010, order is a handwritten notation by the juvenile court stating: “until 10/12/2010 as orders previously entered.”

This court has explained the circumstances under which a juvenile court's order or judgment is sufficiently final to support an appeal:

“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.”

D.P. v. Limestone Cnty. Dep't of Human Res., 28 So.3d 759, 762 (Ala.Civ.App.2009) (holding that an order finding, with regard to the father, that reasonable efforts at reunification were no longer required of the Department of Human Resources was a permanency order that was sufficiently final to support an appeal; that order also expressly left in place previous awards of legal custody incident to dependency findings).

In J.J. v. J.H.W., 27 So.3d 519 (Ala.Civ.App.2008), this court held that an order finding a child dependent and awarding custody to one party was sufficiently final to support the appeal, even though further review of certain motions filed by the parties concerning visitation were scheduled for a later review hearing. This court noted that the order from which the appeal arose “indicates an intent to dispose of all other pending matters,” 27 So.3d at 521, and explained:

“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’ ² award and further review of the case is envisioned.”27 So.3d at 522 (emphasis added). See also E.D. v. Madison Cnty. Dep't of Human Res., 68 So.3d 163, 167 (Ala.Civ.App.2010) (concluding that an order was sufficiently final to support an appeal when it “addressed, among other things, the disposition of the child pursuant to the juvenile court's finding of dependency”).

In C.L. v. D.H., 916 So.2d 622 (Ala.Civ.App.2005), this court concluded that an initial custody order was a pendente lite order but that a subsequent order from which the appeal arose was sufficiently final to support the appeal. This court explained:

“A pendente lite order is one made pending the litigation. See Ex parte J.P., 641 So.2d 276 (Ala.1994) (custody case); Rich v. Rich, 887 So.2d 289 (Ala.Civ.App.2004) (plurality opinion) (discussing the definition and nature of a ‘pendente lite’ order in a custody case), quoted with approval in Hodge v. Steinwinder, (Ala.Civ.App.2005); and Trevino v. Blinn, 897 So.2d 358, 360 (Ala.Civ.App.2004) (Crawley and Murdock, JJ., dissenting) (relied upon in Hodge v. Steinwinder, ). It is an order made pending the adjudication of the existing case, i.e., the extant facts. Id.

“It is true that the juvenile court entered a pendente lite order, but the order entered on May 28, 2004, was not it. The juvenile court entered a pendente lite order on January 9, 2004, awarding custody of the child pending the trial of the case. In that same order, the court set the trial for March 23, 2004. The court later reset the trial for May 7, 2004.

“After the parties had had the opportunity to conduct appropriate discovery and otherwise prepare for trial, the court conducted the scheduled trial, received the evidence pertinent to the issue of the child's dependency, and heard the arguments of both parties. It thereupon found the child dependent and entered its May 28, 2004, judgment transferring primary physical custody of the child to the maternal grandmother....

“The setting of the case for a ‘review’ approximately four months later does not make the juvenile court's May 28 judgment a pendente lite order. The juvenile court's judgment does not indicate that the purpose of the September 2004 ‘review’ hearing would be to finish receiving evidence as to the extant facts as of May 2004. To the contrary, the record and the juvenile court's May 28 judgment fully indicate that it had already heard that evidence and was entering a judgment based thereon. Instead, the judgment indicates that the juvenile court would at its ‘review’ consider a modification of the custody of the child based on whatever new facts might come into existence between the time the juvenile court entered its judgment on May 28, 2004, and the scheduled ‘review’ on September 15, 2004. Cf. Hodge v. Steinwinder, (holding that the issue of the finality of an order in a child-custody case was controlled by the fact that the trial court's judgment was final as to the facts presented at trial and would only be modified in the event that new facts subsequently developed justifying a...