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M.B. v. B.B.

Alabama Court of Civil Appeals

August 4, 2017

M.B.
v.
B.B. and A.B.

         Appeal from Lee Juvenile Court (JU-15-303.02)

          THOMPSON, Presiding Judge.

         M.B. ("the mother") appeals a judgment of the Lee Juvenile Court ("the juvenile court") denying her request for a return of custody of her minor child from B.B. and A.B. ("the custodians").

         The record indicates the following pertinent procedural history and facts. The mother has lived in Colorado for the last 15 years. The child at issue was born in February 2014 in Colorado. The mother ended her relationship with R.L., who is the child's alleged father, in January 2015, when the child was almost 11 months old, and she moved with the child to a new apartment in the Denver, Colorado, area.[1] On approximately January 10, 2015, the mother was arrested for driving under the influence after being stopped for a minor traffic violation.[2] Following that arrest, the Colorado Department of Human Services ("CDHS") took the child into protective custody. Testimony from A.B. indicates that the child spent 19 days in foster care in Colorado. Thereafter, with the mother's permission, CDHS contacted the custodians, who live in Alabama, about serving as a relative placement for the child, and they agreed to take the child.[3] The child has lived in the custodians' home since January 29, 2015.

         At some point shortly after the child came to live with them, the custodians filed a dependency petition in the juvenile court. The record on appeal in this action does not contain that dependency petition or indicate the date on which it was filed. On May 10, 2015, approximately three and a half months after the child was placed in the custodians' home, the juvenile court entered a pendente lite order based on the agreement of the parties. In that May 10, 2015, order, the juvenile court, among other things, found the child dependent and awarded pendente lite custody of the child to the custodians.[4]

         On June 30, 2016, the mother filed a petition in the juvenile court in which she sought a return of custody of the child. The juvenile-court clerk docketed that petition as an .02 action, but it is clear that the mother's request was for a return of custody in the original dependency action and that the juvenile court properly treated it as such.[5]

         The juvenile court conducted an ore tenus hearing. On February 14, 2017, the juvenile court entered a judgment in which it, among other things, found the child dependent, awarded custody of the child to the custodians, awarded the mother visitation, and ordered that the dependency action be closed.[6] The mother filed a postjudgment motion on February 16, 2017. The mother filed a notice of appeal before the juvenile court ruled on that motion and before the motion could be denied by operation of law. The mother's appeal was held in abeyance until March 2, 2017, when the postjudgment motion was deemed denied by operation of law, and it became effective on that date. Rule 4(a)(5), Ala. R. App. P.; see also M.G. v. J.T., 90 So.3d 762, 764 n. 2 (Ala. Civ. App. 2012). Thus, the mother's appeal was timely filed.

         The mother's appeal focuses on her contention that the juvenile court's judgment finding the child dependent was not supported by the evidence. The mother has not addressed the issue of the juvenile court's subject-matter jurisdiction to consider the dependency action, and the custodians did not file a brief in this court. "This court may not presume ... that a statutory court of limited jurisdiction, like the juvenile court, ... has the prerequisite subject-matter jurisdiction over a particular matter." D.G. v. K.H., 155 So.3d 242, 243 (Ala. Civ. App. 2013). Rather, this court must take judicial notice of jurisdictional issues, even ex mero motu. K.R. v. Lauderdale Cty. Dep't of Human Res., 133 So.3d 396, 403-04. (Ala. Civ. App. 2013); M.B.L. v. G.G.L., 1 So.3d 1048, 1050 (Ala. Civ. App. 2008). We note that the parties may not confer jurisdiction on the juvenile court, even by agreement. K.R. v. Lauderdale Cty. Dep't of Human Res., 133 So.3d at 403-04.

         The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), which is codified in Alabama at § 30-3B-101 et seq., Ala. Code 1975, governs a juvenile court's subject-matter jurisdiction over child-custody actions such as this one. According to the UCCJEA, a "child custody proceeding" is "[a] proceeding in a court in which legal custody, physical custody, or visitation with respect to a child is an issue." § 30-3B-102(4), Ala. Code 1975. The term "child custody proceeding" includes, among other things, "a proceeding for ... dependency ..., in which the issue [of custody or visitation] may appear." Id.; see also M.B.L. v. G.G.L., 1 So.3d at 1050 ("The UCCJEA addresses jurisdiction in matters that may be classified within the definition of a 'child custody proceeding, ' including dependency proceedings in which the issue of a child's custody may arise."); and H.T. v. Cleburne Cty. Dep't of Human Res., 163 So.3d 1054, 1062 (Ala. Civ. App. 2014) (explaining that the UCCJEA applies to custody proceedings involving a child alleged to be dependent). A "child custody determination" is defined under the UCCJEA as "[a] judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order." § 30-3B-102(3); see also D.B. v. Coffee Cty. Dep't of Human Res., 26 So.3d 1239, 1243 (Ala. Civ. App. 2009).

         Section 30-3B-201(a), Ala. Code 1975, a part of the UCCJEA sets forth the exclusive jurisdictional basis for an Alabama court to exercise jurisdiction over an initial child-custody determination and provides:

"Except as otherwise provided in Section 30-3B-204, [Ala. Code 1975, ] a court of this state has jurisdiction to make an initial child custody determination only if:
"(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
"(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or [Section] 30-3B-208, [Ala. Code 1975, ] and:
"a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other ...

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