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M.G.D. v. L.B.

Alabama Court of Civil Appeals

October 10, 2014

M.G.D.
v.
L.B. and C.B

Released for Publication June 10, 2015.

Appeal from Shelby Juvenile Court. (JU-13-729.01, JU-13-730.01, and JU-13-731.01). James R. Kramer, Trial Judge.

APPEAL DISMISSED WITH INSTRUCTIONS.

For Appellant: Erin B. Welborn, Columbiana.

For Appellees: Ann S. Derzis, Birmingham.

PITTMAN, Judge. Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.

OPINION

Page 607

PITTMAN, Judge.

M.G.D. (" the mother" ), the mother of three minor children (" the children" ), appeals from an ex parte order of the Shelby Juvenile Court (" the juvenile court" ) restraining her from taking the children out of the juvenile court's geographical jurisdiction without the juvenile court's prior permission. For the reasons discussed below, we dismiss the appeal as being from a void injunctive order and remand the cause with instructions.

The children were born of the mother's marriage to M.B. (" the father" ). When the mother and the father divorced in 2009, the divorce judgment awarded the father primary physical custody and awarded the mother visitation. In December 2013, the father died.

A few days after the father had died, L.B. and C.B. (" the paternal grandparents" ), the paternal grandparents of the children, filed dependency petitions regarding the children in the juvenile court. The dependency petitions alleged that the children were dependent because the father was dead and because, according to the paternal grandparents, the mother was unable to care for the children because, according to the paternal grandparents, the mother lacked stable housing, lacked mental stability, lacked transportation, and lacked income. The dependency petitions further alleged that granting the paternal grandparents custody of the children would be in the children's best interests.

In January 2014, before the mother had been served with process, the paternal grandparents filed a verified motion (" the January custody motion" ) seeking an ex parte order granting them pendente lite custody. In response, the juvenile court, in February 2014, entered an order requiring the paternal grandparents to have a home study performed by the Shelby County Department of Human Resources (" DHR" ), appointing a guardian ad litem to protect the children's interests, and setting the January custody motion for a hearing in March 2014. Later in February 2014, the mother was served with process. At the March 2014 hearing regarding the January custody motion, the parties consented to the entry of an order continuing that hearing until April 2014 in order to give DHR an opportunity to

Page 608

complete its home study regarding the paternal grandparents and to perform a home study regarding the mother, and the juvenile court entered such an order. That same day, the juvenile court appointed counsel to represent the mother. The April 2014 hearing was subsequently continued, and, ultimately, the actions were set for trial in July 2014.

As of May 16, 2014, the juvenile court had not entered any order addressing pendente lite custody.[1] On May 16, 2014, the paternal grandparents and the guardian ad litem jointly filed a motion (" the May 16 motion" ) seeking an order setting an immediate hearing and requiring the parties to appear at that hearing and an order granting the paternal grandparents immediate custody of the children. The May 16 motion alleged that the mother had threatened to take the children to another state, that the mother had abused alcohol and prescription drugs in the past, that the mother lacked stable housing and stable employment, and that the mother had " a history of mental health issues and anger management issues." In support of the May 16 motion the paternal grandparents and the guardian ad litem filed affidavits signed by the mother's mother, the mother's brother, and the mother's sister-in-law in which they attested to information that, if true, would tend to prove the allegations of the motion. The certificate of service on the May 16 motion certified that a copy of the motion had been served on the mother's counsel by mailing it to her on May 16, 2014.

Later on May 16, 2014, the juvenile court held a hearing (" the May 16 hearing" ) regarding the May 16 motion. Neither the mother nor her counsel had been given actual notice of either the May 16 motion or the May 16 hearing before the juvenile court held that hearing, and neither the mother nor her counsel were present when the juvenile court held that hearing. Later that same day, the juvenile court entered an order (" the May 16 order" ) stating:

" Upon consideration of the [May 16] Motion [for immediate custody], together with [the] Affidavits [filed in support of it] and a review of the pleadings and information in the court file, and after consultation with the Guardian ad Litem appointed herein, the Court is of the opinion that an Ex Parte Order is necessary to protect the health, safety and well-being of the minor children and that, absent the Order entered herein, the minor children are likely to suffer grave and irreparable harm. It is therefore, Ordered, Adjudged and Decreed as follows:
" A. That the parties hereto are prohibited from removing the minor children from the jurisdiction of this Court without the prior permission of this Court, pending further Order of this Court.
" B. That a hearing regarding this matter is hereby set for the 3rd day of June, 2014 ... to address the extension of the ex ...

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