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C.E. v. M.G.

Alabama Court of Civil Appeals

January 16, 2015

C.E.
v.
M.G

Released for Publication August 5, 2015.

Page 1062

Appeal from Walker Juvenile Court. (JU-14-189.01). Henry P Allred, TRIAL JUDGE.

For Appellant: Trey J. Malbrough of The Malbrough Firm LLC, Birmingham.

For Appellee: Melvin Hasting, Cullman.

MOORE, Judge. Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

OPINION

Page 1063

MOORE, Judge.

C.E., the mother of R.G. (" the child" ), filed a petition seeking a writ of mandamus compelling the Walker Juvenile Court to vacate its September 23, 2014, order finding the child to be dependent and awarding " temporary custody" of the child to M.G., the child's father. For the reasons discussed infra, we treat the mother's petition as an appeal, and we affirm in part and reverse in part.

Background

In December 2008, the father's paternity of the child was adjudicated by the St. Clair Juvenile Court; in that action, the mother was designated as the child's primary physical custodian and the father was ordered to pay child support. On September 8, 2014, the father filed in the St. Clair Juvenile Court a verified petition alleging that the child was dependent and seeking custody of the child. In his petition, the father asserted that the mother and her husband, B.H., were abusing the child or using excessive corporal punishment on the child to the extent that the father had observed " marks and whelps" on the child's body the previous weekend. As a result, the father sought an ex parte order granting him temporary custody of the child on an emergency basis. On that same date, the St. Clair Juvenile Court transferred the father's petition to the Walker Juvenile Court based on the father's assertion that neither parent continued to reside in St. Clair County.

On September 9, 2014, after the action had been transferred to the Walker Juvenile Court (" the juvenile court" ), the father filed an amended petition to modify custody and an " amended motion for ex parte pendente lite custody" ; that petition and that motion were unverified. On September 10, 2014, the juvenile court entered an ex parte " temporary custody order" placing the child with the father on an emergency basis. In that same order, the juvenile court scheduled a hearing for the following day, i.e., September 11, 2014, and appointed a guardian ad litem to represent the child's best interests.

On September 11, 2014, the day of the hearing, the father filed a verified amended petition to modify custody and a verified " amended motion for ex parte pendente lite custody." On September 23, 2014, the juvenile court entered an order indicating that, at the time of the September 11, 2014, hearing, the mother's attorney had been running late due to a scheduling conflict and that, after waiting a reasonable amount of time, the juvenile court had proceeded to hear evidence without the mother's attorney being present. In its order, the juvenile court found the child to be dependent, awarded physical custody of the child to the father pending a final hearing, ordered the child's stepfather not to discipline the child in any form, and scheduled a final hearing for November 6, 2014.

On October 7, 2014, the mother timely filed her petition for a writ of mandamus; as noted earlier, and for the reasons discussed

Page 1064

infra, we have elected to treat the mother's petition as an appeal. The mother asserts that, because, she alleges, the father's pleadings were unverified, the juvenile court never acquired subject-matter jurisdiction and that, therefore, the juvenile court's September 10, 2014, order awarding the father ex parte emergency custody and all subsequent orders were void; that the juvenile court violated her due-process rights by conducting the September 11, 2014, hearing without her attorney present; and that the juvenile court violated her due-process rights because she was given no notice that the juvenile court would address the child's dependency at the September 11, 2014, hearing.

Analysis

Section 12-15-114(a), Ala. Code 1975, provides that " [a] dependency action shall not include a custody dispute between parents." Because the father, the noncustodial parent, alleged in his initial petition that the child was dependent as to the mother, the child's custodial parent, we must consider whether the juvenile court properly exercised jurisdiction over the father's petition.

In S.K. v. N.B., [Ms. 2121103, Aug. 1, 2014] 160 So.3d 27 (Ala.Civ.App. 2014), the father in that case filed a dependency petition alleging that the mother's boyfriend was abusing the parties' child, that the child was fearful of being in the mother's home, and that the Montgomery County Department of Human Resources had placed the child in his custody pursuant to a safety plan. Id. at 29. This court concluded that, although the father's allegations were directed at the child's custodial parent, they were sufficient to invoke the juvenile court's dependency jurisdiction.[1]Id. at 32. See also T.K. v. M.G.,82 So.3d 1 (Ala.Civ.App. 2011) (father's allegations that mother was using drugs in the ...


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