Jefferson County Department of Human Resources, Ji.B., and D.B.
from Jefferson Juvenile Court JU-14-2173.02
appeal stems from an action commenced in April 2016 in the
Jefferson Juvenile Court by the Jefferson County Department
of Human Resources ("DHR") in which DHR alleged
that a child of J.B. ("the mother"), K.B.
("the child"), was dependent because the mother was
residing with a paramour, S.P., who was under a court order
to have no contact with the child. The juvenile court issued
a pickup order for the child and, after a shelter-care
hearing, placed the child with the mother's father, Ji.B.
("the maternal grandfather"), and his wife, D.B.,
subject to the mother's weekly visitation with the child.
In June 2016, the juvenile court held a hearing at which the
mother, her attorney, DHR's representative and attorney,
and the child's guardian ad litem were present. The
juvenile court's order entered after the June 2016
hearing, although entered "over the objection of"
counsel for the mother and noting the mother's denial of
the allegations of DHR's dependency petition, indicated
that the parties had stipulated to the mother's need for
DHR's services and that "the child is
dependent"; custody of the child was vested in the
maternal grandfather and his wife subject to the mother's
visitation, and the mother was ordered to undergo drug
testing, to attend parenting-skills and domestic-violence
classes, and to participate in mental-health treatment. No
transcript of the hearing leading to the entry of that order
appears in the record in this appeal, nor was any appeal
taken from that order.
juvenile court held two "compliance/dispositional"
hearings in September 2016 and December 2016 as to the child,
noting in each instance that the mother was being given a
"last chance" to come into full compliance with the
provisions of the June 2016 order. Based upon its
underscoring provisions in a form order and its specifying
DHR's duty to provide "individual cognitive
therapy" for the mother and the mother's duty to
participate in that therapy, the juvenile court's
particular concern appears to have been with the mother's
progress in undergoing mental-health treatment. However,
there is no transcript of either hearing in the record in
March 2017, the juvenile court again held a
"compliance/dispositional" hearing as to the child;
a licensed court reporter's transcript of that hearing
appears in the record. Counsel for DHR stated on the record
at that hearing that the mother had been diagnosed as having
a depressive disorder, had been in a number of relationships
in which she had been subjected to domestic violence, but had
failed to attend counseling sessions as required; the
guardian ad litem for the child also noted the mother's
noncompliance. However, no evidence was adduced at that
hearing regarding whether the child remained dependent.
Nonetheless, the juvenile court entered an order closing the
case to further review and vesting the child's custody in
the maternal grandfather and his wife. Following the denial
of her postjudgment motion, and her retention of new counsel,
the mother appealed to this court. We have jurisdiction
pursuant to Rule 28(A)(1)(c)(ii), Ala. R. Juv. P.
appeal, the mother contends that the June 2016 order in which
the child's dependency was first adjudicated was improper
because, she says, the juvenile court could not find the
child dependent without clear and convincing evidence.
However, the child's guardian ad litem, who filed a
letter brief in response to the mother's brief, asserts
that (1) the June 2016 order was expressly based upon the
parties' stipulations that the mother needed DHR's
services and that the child was dependent and (2) that the
mother is barred, under the law-of-the-case doctrine, from
attacking the correctness of that order because she failed to
appeal from that order in a timely manner, citing M.H. v.
Jefferson County Department of Human Resources, 42 So.3d
1291 (Ala. Civ. App. 2010). We agree with the guardian ad
litem that "any error the juvenile court may have
committed in this case by [concluding that the child was
dependent as of June 2016] should have been appealed at that
point and cannot now be raised following" the entry of a
subsequent judgment closing the case to further review, 42
So.3d at 1293, and that the June 2016 order is beyond our
scope of review.
the mother also insists that the March 2017 order -- which
order, the record reveals, was entered based upon the
arguments of counsel rather than ore tenus evidence -- was
erroneous because it amounted to a final dispositional
judgment as to the child without the presence of evidence
indicating that the child remained dependent. Both DHR and
the guardian ad litem, in their letter briefs, have confessed
the existence of error as to that order because, they say,
the mother was entitled to be heard as to the issue of the
child's continued dependency, yet the juvenile court did
not conduct a full evidentiary hearing when the child's
custody was finally disposed and the case was closed. As to
the March 2017 order, therefore, "[t]he posture of the
case is in effect a confession of error on the part of the
appellee[s] and a joinder therein by the appellant, "
Payton v. Sexton, 273 Ala. 224, 225, 137 So.2d 747,
748 (1962); we therefore reverse that order and remand the
cause for an evidentiary hearing regarding the issue whether
the child remains dependent under Alabama law and, if so, for
an appropriate custodial disposition.
Thompson, P.J., and Thomas, Moore, and Donaldson, JJ.,
Our decision today should not be
interpreted as receding from our holding in E.W. v.
Jefferson County Department of Human Resources, 84 So.3d
966, 967 (Ala. Civ. App. 2011), to the effect that a party
defending a juvenile-court custody disposition incident to a
prior determination of dependency may properly rely upon an
appellant's failure to ...