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D.H. v. B.M.

Alabama Court of Civil Appeals

July 21, 2017

D.H.
v.
B.M. and T.S. C.H.
v.
B.M. and T.S.

         Appeals from Autauga Juvenile Court (JU-15-59.02)

          THOMPSON, Presiding Judge.

          On April 23, 2015, B.M. and T.S. ("the maternal grandparents") filed in the Autauga Juvenile Court ("the juvenile court") petitions alleging that D.L.H. ("the child") and W.H. ("the half sibling"), the minor children of C.H. ("the mother"), were dependent and seeking awards of custody of the children. We note that the record contains little evidence regarding the action pertaining to the half sibling. That child was quickly returned to the parents' custody and is not at issue in these appeals. Accordingly, we address only the action pertaining to the child. We further note that parallel dependency actions pertaining to the children were initiated by the Autauga Department of Human Resources ("DHR") before the maternal grandparents filed their petition in the underlying action. DHR's dependency actions are discussed in greater detail later in this opinion.

         In their dependency petition, the maternal grandparents alleged that D.H. ("the father")[1] had sexually abused the child and that the mother was not taking action to properly protect and care for the child. On June 4, 2015, the juvenile court entered a pendente lite order in which it, among other things, left legal custody of the child with the parents, awarded pendente lite physical custody to B.M. ("the maternal grandmother"), and ordered that the father not have contact with the child. In that order, the juvenile court also left legal and physical custody of the half sibling with the parents but ordered that the half sibling and the child have visitation with each other.

         On April 19, 2016, the juvenile court entered an order after receiving ore tenus evidence. In that order, the juvenile court found the child to be dependent and awarded custody to the maternal grandparents, denied the father visitation with the child, but awarded the mother visitation. The juvenile court conducted a final hearing on the merits on May 16, 2016.

         On June 14, 2016, the juvenile court entered a judgment in which it again found the child to be dependent and awarded custody of the child to the maternal grandparents. In entering that judgment, the juvenile court found the child's allegations of abuse and "other problems in the home" to be credible, and it noted that the mother and the father had not believed the child and had claimed that the child could not distinguish dreams from reality.

         On June 16, 2016, two days after the entry of the custody judgment, the father filed a notice of appeal from the juvenile court's judgment to the circuit court. In his June 16, 2016, notice of appeal, the father alleged that there was an inadequate record for appellate review, and he sought a trial de novo. The juvenile court entered an order on June 22, 2016, noting that the father had filed the notice of appeal to the circuit court, which was the incorrect forum, and finding that the father's assertion that there was an inadequate record was premature.[2] Apparently in response to the June 22, 2016, order, the father amended his notice of appeal on June 23, 2016, on a form designating that the appeal be to this court.

         On July 7, 2016, the mother filed a notice of appeal. The parties have incorrectly referred to the mother's notice of appeal as a "cross-appeal." See Black's Law Dictionary 117 (10th ed. 2014) (defining "cross-appeal" as "[a]n appeal by the appellee").

         As an initial matter, we must determine whether this court has jurisdiction over the mother's appeal.[3] In the absence of a timely postjudgment motion, the parties had 14 days, or until June 28, 2016, to file a timely appeal of the juvenile court's June 14, 2016, judgment. See Rule 4(a)(1)(E), Ala. R. App. P. The father timely appealed on June 16, 2016. Rule 4(a)(2), Ala. R. App. P., provides that if a party files a timely notice of appeal, "any other party may file a notice of appeal within 14 days (2 weeks) of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires." Thus, after the father filed his timely notice of appeal, Rule 4(a)(2) operated to afford the mother additional time to file a timely notice of appeal of the June 14, 2016, judgment. W.F. v. State Dep't of Human Res., 704 So.2d 483, 485 n. 1 (Ala. Civ. App. 1997). Instead of being required to appeal by June 28, 2016, which was 14 days following the entry of the June 14, 2016, judgment, the mother had until June 30, 2016, which was 14 days after the father filed his timely, June 16, 2016, notice of appeal, to timely appeal the judgment.

         Under the facts of this case, June 30, 2016, constituted the last date, under Rule 4(a)(2), on which the mother could timely appeal. The mother's July 7, 2016, notice of appeal was filed in excess of 14 days after the father's June 16, 2016, notice of appeal. In her response to this court's request for argument on the issue of the timeliness of her appeal, (see note 3, supra), the mother addressed only the father's June 23, 2016, notice of appeal, which amended his original notice of appeal to reflect that the appeal was to be taken to this court. The father filed the June 16, 2016, notice of appeal to the circuit court because, he argued, the record on appeal was not adequate for review by this court under Rule 28, Ala. R. Juv. P. The juvenile court (see note 2, supra) and this court (see note 3, supra) disagreed that the record on appeal was inadequate; therefore, the father's notice of appeal should have been filed to this court. Rule 28, Ala. R. Juv. P. If an appeal is filed to the wrong court, the courts will transfer the appeal to the correct court, even ex mero motu. See Rule 3(c), Ala. R. App. P. ("If the notice of appeal names the wrong appellate court to which the appeal is taken, such designation shall be treated as a clerical mistake and corrected accordingly. The necessary clerical steps shall be taken to docket the appeal and to file the record and briefs in the appropriate appellate court."); Rule 28(D), Ala. R. Juv. P. ("An appellate court or circuit court may transfer an appeal to another court if it determines that the appeal should be transferred to or should have been brought in that court."); Jenkins v. Covington, 939 So.2d 31, 33 (Ala. Civ. App. 2006); W.E.C. v. Madison Cty. Dep't of Human Res., 909 So.2d 849, 850 (Ala. Civ. App. 2005); and D.K.G. v. J.H., 627 So.2d 935, 936 (Ala. Civ. App. 1992); see also R.H. v. J.H., 778 So.2d 839, 841 (Ala. Civ. App. 2000) (the notice of appeal divested the juvenile court of jurisdiction). Thus, regardless of the fact that the father initially appealed to the circuit court instead of this court, because the record has been deemed adequate, this court has jurisdiction over the appeal and the appeal is appropriately before this court; conversely, if the record on appeal had been deemed inadequate, the appeal would have been transferred to the circuit court. Rule 28(D), Ala. R. Juv. P.; D.K.G. v. J.H., supra; Jenkins v. Covington, supra. The father's June 23, 2016, amended notice of appeal was not necessary and was not effective to toll any period for allowing the mother to timely appeal.

         The mother had until June 30, 2016, a period extended pursuant to Rule 4(a)(2), to timely appeal. The mother's July 7, 2016, notice of appeal was not timely filed. Therefore, this court lacks jurisdiction over her appeal, and we dismiss the mother's appeal. M.M. v. L.L., 989 So.2d 528, 530 (Ala. Civ. App. 2007).

         The record indicates that before the maternal grandparents initiated this dependency action, DHR had filed, on March 17, 2015, dependency petitions pertaining to the child and the half sibling. In those petitions, DHR alleged that the father had sexually abused the child, who was 11 at that time. We note that the dependency actions initiated by DHR pertaining to the children were consolidated in the juvenile court; we hereinafter refer to the action initiated by DHR pertaining to the child as "the .01 action." There is no indication in the record that any party sought to consolidate those actions with the dependency actions regarding the child that was initiated by the maternal grandparents, and the record contains no order consolidating the .01 action with the dependency action underlying this appeal.

         On April 10, 2015, the juvenile court entered an order in the .01 action (as well as in the dependency action pertaining to the half sibling initiated by DHR) in which it awarded pendente lite legal and physical custody of the half sibling to the parents, awarded pendente lite legal custody of the child to the parents, but awarded pendente lite physical custody of the child to the maternal grandmother. That order specified that, although the child and her half sibling would be allowed to visit each other, the father was to have no contact with the child.

          The maternal grandparents initiated their dependency action pertaining to the child (hereinafter sometimes referred to as "the .02 action") on April 23, 2015.

         On June 4, 2015, the juvenile court entered in the .01 action another pendente lite order that was substantively the same as its earlier, April 10, 2015, order. The record indicates that that order was entered on the State Judicial Information System in the .02 action, although the style of the order indicates that it was applicable to the .01 action.

         On August 18, 2015, the maternal grandmother filed an "amended petition" to have the child declared dependent; that petition was styled as being applicable to the .01 action, but it was filed in the .02 action. The maternal grandparents later moved for a continuance of a scheduled hearing in the .01 action. It is clear that the parties and the juvenile court occasionally intermingled the case numbers in the two pending dependency actions pertaining to the child. It appears that the parties did not continue to allege that the half sibling, who remained in the custody of his parents, was dependent.

          On December 14, 2015, the juvenile court entered an order in the .01 action in which it found the child to be dependent based on an "agreement of the parties" and awarded custody of the child to the maternal grandparents. In that order, the juvenile court specifically referred to the action in which that order was entered as being the dependency action initiated by DHR and stated that it had been entered following a "final hearing, " although the juvenile court specified that the custody award was effective pending further orders of the court. No similar order was entered in the .02 action initiated by the maternal grandparents.

         On January 7, 2016, the father filed in the .01 action a motion pursuant to Rule 60(b), Ala. R. Civ. P., in which he alleged that the juvenile court's December 14, 2015, order was based on a "factual mistake" because, he said, he was not present at the conference or hearing at which the other parties agreed that the child was dependent and that he did not agree that the child was dependent. The father also argued that no evidence had been presented as to the issue of the child's dependency. The father also filed a motion seeking visitation with the child, and he later, on March 17, 2016, amended his Rule 60(b) motion in the .01 action. There is no indication that the juvenile court ruled on that pending Rule 60(b) motion in the .01 action.

         On April 19, 2016, the juvenile court entered an order in the .02 action after conducting an ore tenus hearing. In that April 19, 2016, order, the juvenile court found the child to be dependent, and, among other things, it stated that "[p]rior motions concerning dependency are moot." We note that, in his appellate brief, the father alleges that that April 19, 2016, order, by referencing earlier dependency motions, was a denial of his Rule 60(b) motion filed in the .01 action.[4] In that order, the juvenile court also denied a request by the father for visitation with the child based on a determination that such visitation would not be in the child's best interests. As noted earlier, the juvenile court entered a judgment in the .02 action on June 14, 2016, in which it again found the child to be dependent and awarded custody of the child to the maternal grandparents.

          The father lists as his first argument on appeal the contention that the juvenile court deprived him of his due-process rights throughout the pendency of the dependency litigation. We note that the father has appealed only in the .02 dependency action initiated by the maternal grandparents. There is no indication that the juvenile court entered a judgment in the .01 action initiated by DHR at the same time, or approximately the same time, as the June 14, 2016, judgment in the underlying action, such that an appeal of any order entered in that action would be timely.

         As part of his due-process argument, the father first contends that the juvenile court erred in awarding pendente lite custody of the child to the maternal grandmother in its April 10, 2015, pendente lite order entered in the .01 action because, he says, no evidence was presented to the juvenile court before it entered that order. We note that, in entering that pendente lite order, the juvenile court stated that it had based the order on an agreement of the parties. The father did not timely seek appellate review of that pendente lite order, which was entered in the .01 action and which was entered before the .02 action that forms the basis of this appeal was initiated.

         The father also contends that the juvenile court erred in failing to allow him to attend a December 7, 2015, in camera meeting among the other parties and their attorneys and in entering an order on December 14, 2015, finding the child to be dependent based on the "agreement of the parties." The father asserts that he would not have agreed, and did not agree, that the child was dependent. Although the parties and the juvenile court appear to have intermingled some pleadings, motions, and orders between the two dependency actions, as discussed, supra, that December 14, 2015, order was specifically entered with regard to DHR's dependency petition in the .01 action, and it was not entered in the .02 action from which this appeal arises. Even assuming that this court could consider an argument pertaining to an order entered in the .01 action, the father cannot prevail on this argument. This court need not determine whether the December 14, 2015, order entered in the .01 action was sufficiently final to support an appeal. See, e.g., Ex parte T.C., 96 So.3d 123, 129-30 (Ala. 2012) (an order finding a child dependent, without making a custody determination, is not sufficiently final to support an appeal). If that order was final (and if this court could consider it), the father's notice of appeal was filed well outside the 14 days allowed by Rule 4(a)(1), Ala. R. App. P. Also, if the order was not final, this court could not review it on appeal because a pendente lite order is not made final by the entry of a final judgment but, rather, is replaced by the final judgment. Morgan v. Morgan, 183 So.3d 945, 966 (Ala. Civ. App. 2014); see also Ex parte J.P., 641 So.2d 276, 278 (Ala. 1994) ...


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