February 27, 2015
T.N. and C.N.
for Publication April 28, 2016.
from Montgomery Juvenile Court. (JU-10-649.04). Anita L.
Kelly, Trial Judge.
Appellants: Samuel J. McLure of The Adoption Law Firm, LLC,
Appellee: Michael Guy Holton, Wetumpka.
Judge. Thompson, P.J., and Pittman and Moore, JJ., concur.
Thomas, J., recuses herself.
and C.N. petitioned this court for a writ of mandamus
directing the Montgomery Juvenile Court (" the juvenile
court" ) (1) to refrain from interfering with their
attempts to enforce a judgment entered by the Elmore Probate
Court (" the probate court" ) on May 8, 2014,
granting T.N. and C.N.'s petition to adopt S.B. ("
the child" ), (2) to vacate a judgment in which the
juvenile court granted custody of the child to D.C., and (3)
to cease all proceedings relating to the child.
underlying juvenile court proceedings, in which T.N. and C.N.
were not parties, the juvenile court entered a judgment on
April 21, 2014, granting custody of the child to D.C. and
amended that judgment on May 16, 2014, pursuant to a
postjudgment motion filed by the Montgomery County Department
of Human Resources (" DHR" ). On May 9, 2014, the
guardian ad litem for the child filed a motion for a
temporary restraining order in the juvenile court seeking to
enjoin T.N. and C.N. from taking action to enforce the
judgment entered by the probate court granting T.N. and
C.N.'s petition to adopt the child. On the same day, the
juvenile court entered a temporary restraining order
directing T.N. and C.N., their agents, and law enforcement to
refrain from removing the child from D.C.'s custody. The
juvenile court amended the restraining order on May 12, 2014,
and set the matter for a hearing on May 20, 2014. On May 16,
2014, T.N. and C.N. filed a petition for a writ of mandamus
with this court. On May 20, 2014, the juvenile court entered
an order canceling the hearing scheduled for that day and
indefinitely extending the restraining order. The juvenile
court's order cited T.N. and C.N.'s filing of the
petition for a writ of mandamus as good cause to extend the
injunctive relief granted in the temporary restraining order.
See Rule 65(b), Ala. R. Civ. P. (" Every temporary
restraining order ... shall expire by its terms within such
time after entry not to exceed ten (10) days ..., unless
within the time so fixed the order for good cause shown is
extended ...." ). On the same day, T.N. and C.N. amended
their petition with this court asserting that the juvenile
court's May 20 order converted the temporary restraining
order into a preliminary injunction that was entered without
proper notice to T.N. and C.N. and without providing T.N. and
C.N. with a right to be heard. Because the proper method to
challenge an injunction is by direct appeal pursuant to Rule
4(a)(1), Ala. R. App. P., this court has elected to treat the
petition for a writ of mandamus as an appeal. See J.A.W.
v. G.H., 72 So.3d 1254, 1256 (Ala.Civ.App.
2011)(citing Ex parte State Pers. Bd., 45 So.3d 751,
754 (Ala. 2010)(holding that the proper means of obtaining
appellate review in cases in which the trial court has
enjoined the activity of a nonparty is by means of an
appeal)). We dismiss the appeal because the issue regarding
the restraining order is moot and because T.N. and C.N. have
no standing to challenge the custody order.
appeal, T.N. and C.N. contend that the juvenile court lacked
authority to enter the orders restraining them, their agents,
or law enforcement from enforcing the probate court's
judgment of adoption and that the temporary restraining
orders are void because the juvenile court no longer had
jurisdiction over the matter after the probate court granted
their petition to adopt the child. Pursuant to §
26-10A-3, Ala. Code 1975, proceedings for the adoption of a
child brought under the Alabama Adoption Code, §
26-10A-1 et seq., Ala. Code 1975, are within the exclusive
original jurisdiction of the probate court. Our supreme court
has stated that " adoption proceedings are outside the
jurisdiction of the juvenile court unless transferred
there." Ex parte A.M.P., 997 So.2d 1008, 1021
(Ala. 2008)(citing § 12-15-30(b)(5), Ala. Code 1975).
" This court has noted that the juvenile court is
'concerned with a different issue than the probate court
and that [their respective judgments] are separate judgments
rendered on different facts under different law.'"
B.C. v. Cullman Cnty. Dep't of Human Res., [Ms.
2140100, Jan. 16, 2015] 169 So.3d 1059, , *3 (Ala.Civ.App.
2015)(quoting D.B. v. J.E.H., 984 So.2d 459, 462
(Ala.Civ.App. 2007)). We have also concluded that a juvenile
court does not have jurisdiction to enjoin nonparties from
taking action in a probate court to adopt a child. See
B.C., 169 So.3d at 1061, *3, and J.A.W., 72
So.3d at 1257. We note that the record does not reflect that
T.N. or C.N. were made parties to the juvenile proceedings at
issue in this appeal; however, T.N. nor C.N. do not raise any
issue regarding whether the juvenile court has personal
jurisdiction over them sufficient to enter the restraining
orders. Therefore, we do not address that issue.
I.B. v. T.N., [Ms. 2130668, Jan. 16, 2015] __ So.3d
__, (Ala.Civ.App. 2015) , this court reversed the probate
court's judgment granting T.N. and C.N.'s petition to
adopt the child on the basis that the probate court had not
received clear and convincing evidence to support a finding
that I.B. (" the mother" ), the child's minor
mother, had given implied consent to the adoption. Our
appellate courts have recognized:
" '" The general rule is that an appeal is
subject to dismissal if, pending the appeal, an event occurs
which makes a determination of the appeal unnecessary."
' Board of Adjustment of Montgomery v. Priester,
347 So.2d 530, 531 (Ala.Civ.App. 1977) (quoting Moore v.
Cooke, 264 Ala. 97, 100, 84 So.2d 748, 749-50 (1956)).
One such event is an elimination of a justiciable controversy
between the parties pending appeal. See Water Works &
Sewer Bd. of Birmingham v. Petitioners Alliance, 824
So.2d 705, 708 (Ala. 2001) (dismissing appeal from action
seeking declaratory relief on the basis that 'a present
controversy between any of the parties' did not
Young's Realty, Inc. v. Brabham, 896 So.2d 581,
583 (Ala.Civ.App. 2004).
court's reversal of the probate court's judgment of
adoption directly affects our disposition of some of the
issues raised in this appeal by T.N. and C.N. See L.C.S.
v. J.N.F., 941 So.2d 973, 978 (Ala.Civ.App. 2005).
Because of our decision regarding the probate court's
judgment of adoption of the child, T.N. and C.N.'s
arguments that the juvenile court lacked authority to enter
the temporary retraining orders and that the juvenile
court's jurisdiction terminated after the probate court
entered the judgment of adoption are moot. Therefore, we
dismiss the appeal as to those issues. See L.C.S.,
941 So.2d at 980-81.
we must determine whether T.N. and C.N. can be granted relief
from the juvenile court's order of May 20, 2014. T.N. and
C.N. contend that that order amounts to a preliminary
injunction that the juvenile court entered without providing
them with notice or a hearing. " Notice to the adverse
party before a preliminary injunction is issued is mandatory,
pursuant to Rule 65(a), Ala. R. Civ. P." Funliner of
Alabama, L.L.C. v. Pickard, 873 So.2d 198, 219 (Ala.
2003). Furthermore, Rule 65(b), Ala. R. Civ. P., requires a
motion for a preliminary injunction to be set for a hearing
when a temporary restraining order has been entered without a
hearing. To the extent that the juvenile court's May 20,
2014, order could be construed to be a preliminary
injunction, it clearly was entered without notice to T.N. and
C.N. and without a hearing. However, " [e]vents
occurring subsequent to the entry or denial of an injunction
in the trial court may properly be considered by [an
appellate court] to determine whether a cause, justiciable at
the time the injunction order is entered, has been rendered
moot on appeal." South Alabama Gas Dist. v.
Knight, 138 So.3d 971, 975 (Ala. 2013).
See also Employees of the Montgomery Cnty. Sheriff's
Dep't v. Marshall, 893 So.2d 326, 330 (Ala.
2004)(" [An appellate court] will dismiss an appeal from
the denial of an injunction when an event occurring after the
denial of the injunction renders the appeal moot." ).
The basis for the guardian ad litem's motion for
injunctive relief was to prevent T.N. and C.N. from removing
the child from D.C.'s custody based on the probate
court's judgment of adoption. As stated above, this court
reversed that judgment. Thus, the basis for the juvenile
court's purported preliminary injunction of May 20, 2014,
" no longer exists." Davis v. Alabama Educ.
Ass'n, 92 So.3d 737, 748 (Ala. 2012).
" '" Where the grounds and reasons for which
the injunction was granted no longer exist, by reason of
changed conditions, it may be necessary to alter the decree
to adapt it to such changed conditions, or to set it aside
altogether, as where there is a change in the controlling
facts on which the injunction rests, or where the applicable
law, common or statutory, has in the meantime been changed,
modified, or extended. Such change in the law does not
deprive the complainant of any vested right in the
injunction, because no such vested right exists."
Id. (quoting Wilkinson v. State ex rel.
Morgan, 396 So.2d 86, 89 (Ala. 1981), quoting in turn 42
Am.Jur. 2d Injunctions § 334 (1969))(emphasis omitted).
Therefore, we dismiss T.N. and C.N.'s appeal as to this
issue and instruct the juvenile court to vacate the order of
May 20, 2014, as moot.
and C.N. also contend that the juvenile court's order
granting custody of the child to D.C. is void because they
did not receive notice of the proceedings related to that
judgment. We must determine whether this issue is properly
before this court. In October 2010, DHR, pursuant to an order
of the juvenile court, placed the child in foster care with
T.N. and C.N. On December 23, 2013, the juvenile court
entered an order directing that the child be placed in foster
care with D.C., who was also a foster parent to the mother,
and granting T.N. and C.N. visitation privileges with the
child. On March 12, 2014, D.C. filed a separate dependency
petition in the juvenile court seeking a judgment of
permanent custody of the child. That dependency petition
initiated a new case. After holding a final hearing on
D.C.'s petition, at which T.N. and C.N. were not present,
the juvenile court entered a final judgment on April 21,
2014, relieving DHR of temporary custody of the child,
concluding that the child remained dependent pursuant to a
previous finding of dependency, and granting D.C. sole legal
and physical custody of the child. The juvenile court's
judgment stated that it was final and that the case was
" closed to further review." DHR filed a timely
motion to alter, amend, or vacate the judgment, which the
trial court granted, in part, on May 16, 2014, although
without modifying the provisions of the judgment concerning
the grant of custody to D.C.
the juvenile court had granted T.N. and C.N.'s motion to
intervene in a previous proceeding relating to the child,
they were not made parties in any manner to the dependency
proceeding initiated by D.C. by the March 12, 2014, petition.
Nevertheless, on May 7, 2014, T.N. and C.N. filed what they
designated as a " postjudgment
motion for relief" from the juvenile court's April
21, 2014, judgment. In their purported postjudgment motion,
T.N. and C.N. stated that they were seeking relief under
" Rules 59, 60, 62, etc." , Ala. R. Civ. P., argued
that the April 21 judgment was due to be vacated, and
requested relief under those rules as to " other orders
or proceedings not listed herein from which the [T.N. and
C.N.] have been wrongfully excluded." Because the motion
was filed more than 14 days after the entry of the original
judgment, we construe the purported postjudgment motion as
having been made pursuant to Rule 60(b), Ala. R. Civ. P. See
K.M.G. v. B.A., 73 So.3d 708, 711 (Ala.Civ.App.
2011)(construing a postjudgment motion purportedly filed
pursuant to Rule 59, Ala. R. Civ. P., as a motion filed
pursuant to Rule 60(b)). We also note that T.N. and
C.N.'s purported postjudgment motion was premature
because it was filed before the juvenile court had ruled on
DHR's timely Rule 59 motion to alter, amend, or vacate
the April 21, 2014, judgment. T.N. and C.N. argued in their
May 7, 2014, motion that § 12-15-307, Ala. Code 1975,
requires foster parents and preadoptive parents to be given
notice of and a right to be heard in any juvenile-court
proceeding. Section 12-15-307 provides:
" Relative caregivers, preadoptive parents, and foster
parents of a child in foster care under the responsibility of
the state shall be given notice, verbally or in writing, of
the date, time, and place of any juvenile court proceeding
being held with respect to a child in their care.
" Foster parents, preadoptive parents, and relative
caregivers of a child in foster care under the responsibility
of the state have a right to be heard in any juvenile court
proceeding being held with respect to a child in their care.
" No foster parent, preadoptive parent, and relative
caregiver of a child in foster care under the responsibility
of the state shall be made a party to a juvenile court
proceeding solely on the basis of this notice and right to be
heard pursuant to this section."
and C.N. contend that the juvenile court lacked jurisdiction
to enter April 21, 2014, judgment because they did not
receive notice of the proceedings until after May 7, 2014.
juvenile court never ruled on T.N. and C.N.'s May 7,
2014, motion. Thus, there is no order from the juvenile court
on the motion for this court to review. See Rhodes v.
Rhodes, 38 So.3d 54, 63 (Ala.Civ.App. 2009) ("
[B]ecause the trial court has not yet expressly ruled on the
husband's Rule 60(b) motion, it is still pending before
the trial court and there has been no final order on that
motion from which to appeal." ). Furthermore, because
they were nonparties to the action, T.N. and C.N. lacked
standing to seek postjudgment relief in the proceedings filed
by D.C. in March 2014. Rule 60(b), Ala. R. Civ. P., provides,
in part, that " [o]n motion and upon such terms as are
just, the court may relieve a party or a party's legal
representative from a final judgment, order, or proceeding
for the following reasons: ... (4) the judgment is
void." (Emphasis added.)
" Although neither party in its briefs to this Court
raises the issue whether [T.N. and C.N.] had standing to file
a Rule 60(b), Ala. R. Civ. P., motion to seek relief from
judgments entered in an action to which [they were] not
parties, standing is a component of subject-matter
jurisdiction and can be raised at any time."
Ex parte Overton, 985 So.2d 423, 427 (Ala.
2007)(citing State v. Property at 2018 Rainbow
Drive, 740 So.2d 1025 (Ala. 1999)).
12-15-307 explicitly states that foster parents and
preadoptive parents are not to be made parties to an action
solely on basis that they have a
right to notice of the action and a right to be heard.
Furthermore, the plain language of § 12-15-307 applies
only when the child is in the care of the foster parents or
preadoptive parents. At the time the dependency proceeding
was commenced by D.C., T.N. and C.N. had visitation
privileges with the child, but the child was not in their
care. Furthermore, T.N. and C.N. did not file a motion
pursuant to Rule 24, Ala. R. Civ. P., seeking to intervene in
the dependency proceedings commenced by D.C. See F.W. v.
T.M., 140 So.3d 950, 958 (Ala.Civ.App. 2013)(" This
court has routinely recognized that relative caregivers and
foster parents may seek and be granted intervention in a
dependency action." ). Thus, T.N. and C.N. could not
have been considered parties to the proceedings for purposes
of filing a motion for relief from the judgment pursuant to
Rule 60(b)(4). Furthermore, T.N. and C.N. could not have been
considered a " legal representative" of a party for
purposes of filing a Rule 60(b) motion. See Ex parte Overton,
985 So.2d at 428 (" A legal representative under Rule
60(b) is 'one who by operation of law is tantamount to a
party in relationship to the matter involved in the principal
action.'" (quoting Western Steel Erection Co. v.
United States, 424 F.2d 737, 739 (10th Cir.
1970)(interpreting Rule 60(b), Fed.R.Civ.P.))). Thus, T.N.
and C.N.'s May 7, 2014, motion for relief from the April
21, 2014, judgment is a nullity.
foregoing reasons, we dismiss T.N. and C.N.'s appeal.
P.J., and Pittman and Moore, JJ., concur.
J., recuses herself.
T.N. and C.N. filed a motion to strike
certain portions of I.B.'s brief that they contend are
unsupported or unsubstantiated by the record. Because we are
dismissing the appeal and because those portions of the brief
do not affect our decision, that motion is denied as
In this opinion, this court addresses only
the issues as they have been presented by the parties and by
the record below. Because the issue concerning the purported
injunctive relief is now moot, we do not address the
propriety of the injunctive relief ordered by the juvenile
court. This opinion should not be read as an endorsement of
the actions taken by the juvenile court in this