Appeal from St. Clair Juvenile Court. (JU-94-24). TRIAL JUDGE: Jim Embry, Jr.
Released for Publication August 21, 1995.
Yates, Judge. Robertson, P. J., and Thigpen, J., concur.
The opinion of the court was delivered by: Yates
On April 18, 1994, the Juvenile Division of the Circuit Court of Okeechobee County, Florida, entered an order requesting the Alabama Department of Human Resources (DHR) to take three children living in Ashville, Alabama, into custody and to transport them to the Birmingham airport to be placed in the custody of the Florida Department of Health and Rehabilitative Services (DHRS). The court authorized and directed DHRS to place the children in shelter care, finding that "the removal of the children from the home is in the best interest of the children and is necessary to protect said children's safety and well being" and that "an emergency exists in which the children can not safely remain in the home."
DHRS alleged that another sibling of the children had been taken into its custody in 1990 and placed in foster care. That child had reported that the parents had sexually abused her, as well as the other children. DHRS had received information that the parents were incarcerated in the Okeechobee County jail and that the children were in the physical custody of L. L., the paternal grandmother, and that she had allowed an uncle, who had served time in prison for committing sexual crimes against children, access to the children. The uncle had allegedly been charged with new sexually related crimes and was facing a grand jury indictment.
On April 20, 1994, L. L. petitioned the Juvenile Court of St. Clair County, Alabama, seeking temporary custody of the children. She stated that she had had physical custody of her grandchildren since 1990; that they were residents of Alabama; and that the Florida court lacked jurisdiction. She alleged that DHR had apparently agreed to carry out this order without any direction" from the Alabama court, and she asked the Alabama court to enjoin DHR from transporting the children to Birmingham to the custody of DHRS.
The Alabama court scheduled a hearing on the grandmother's petition; however, when the case was called, the court was informed that the children were no longer in Alabama. The Alabama court entered an order on April 27, 1994, stating that it had been agreed that "the jurisdictional question would be presented on stipulation of facts."
It was stipulated that the Florida court order was presented to the Alabama court and that the Alabama court gave an oral order on April 19, 1994, to DHR to aid and assist in enforcing the Florida court order by picking up the children and delivering them to DHRS. It was further stipulated that at the time the Alabama court gave this oral order, L. L. had not yet filed her petition.
Based upon the stipulation of facts, the Alabama court made findings and entered an order:
"That the [Florida court] assumed jurisdiction of the minor [children] by virtue of having the natural parents of said minor children before [it].
"That there was no pending petition seeking temporary legal custody of the minor children filed with the [Alabama court].
"That the minor children had been removed from the jurisdiction of the [Alabama court] pursuant to [its] oral order ... before a hearing could be held on the Petition of [L. L.].
"It is therefore ORDERED, ADJUDGED AND DECREED that based on the Florida Court having assumed jurisdiction over the person of the minor children, before any petitions had been filed with the [Alabama ...