B.J.C. and E.T.A.
Blount County Department of Human Resources
from Blount Circuit Court (CV-17-900034)
ON APPLICATION FOR REHEARING
court's opinion of September 8, 2017, is withdrawn, and
the following is substituted therefor.
the mother, and E.T.A., the father, are the parents of
A.S.A-C. ("the child"). The parents filed a notice
of appeal from a judgment of the Blount Circuit Court
("the circuit court"), denying a petition for the
writ of habeas corpus filed by the parents, who sought the
return of custody of the child. The resolution of this appeal
requires a recitation of the procedural history of the
actions regarding the custody of the child that were filed in
the circuit court and in the Blount Juvenile Court ("the
Blount County Department of Human Resources ("DHR")
became involved with the family after receiving a report that
the parents were abusing and distributing controlled
substances. DHR filed a dependency petition in the juvenile
court. The record contains a March 31, 2016, order in case
number JU-16-78.01, in which the juvenile court awarded
temporary custody of the child to DHR. Nearly one year
later, the parents filed a petition for a writ of habeas
corpus in the circuit court, which, as amended, reads, in
"All of the proceedings in [the dependency action in the
juvenile court] involving [the child] are void and to no
effect. [The child] was a resident of Tennessee at the time
[DHR filed the dependency] petition. Neither the Blount
County Department of Human Resources nor the Juvenile Court
of Blount County, Alabama[, ] has any jurisdiction over [the
child]. He has never been a resident of Alabama. [Section]
12-15-114, Ala. Code (1975)[, ] does not provide such
jurisdiction. Subsection (a) applies only to children who are
residents or are present in the state at the time the
petition is filed. [The child] is not subject to jurisdiction
pursuant to the provisions of subsection (c)(1)."
record contains a transcript of a hearing conducted by the
circuit court on March 21, 2017, after which the circuit
court entered a judgment denying the parent's petition
for a writ of habeas corpus. The parents filed a notice of
appeal of the judgment of the circuit court. "Although
none of the parties has addressed the issue, this court must
determine whether it has jurisdiction over this appeal.
Jurisdictional matters are of such importance that a court
may take notice of them ex mero motu. Nichols v.
Ingram Plumbing, 710 So.2d 454 (Ala. Civ. App.
1998)." McMurphy v. East Bay Clothiers, 892
So.2d 395, 397 (Ala. Civ. App. 2004).
R.D.P. v. State Department of Youth Services, 655
So.2d 1029 (Ala. Civ. App. 1995), the juvenile court in that
case had entered an order adjudicating R.D.P. dependent,
making certain recommendations, and awarding custody of
R.D.P. to the Alabama Department of Youth Services
("Youth Services"). 655 So.2d at 1030. As R.D.P.
neared the age of majority, Youth Services filed a petition
in the juvenile court seeking another placement for R.D.P.;
the juvenile court entered a order maintaining the status
quo. Id. Rather than filing a notice of appeal,
R.D.P. filed a petition for the writ of habeas corpus in the
Houston Circuit Court, which dismissed the action because it
concluded that, pursuant to Rule 28, Ala. R. Juv. P., it
lacked subject-matter jurisdiction. Id. R.D.P. filed
a notice of appeal of the Houston Circuit Court's
judgment to this court, contending that the Houston Circuit
Court had authority to grant his petition. Id. at
1031. We affirmed the order of the Houston Circuit Court and
"This court, in Wright v. Montgomery County
Dep't of Pensions & Security, 423 So.2d 256
(Ala. Civ. App. 1982), determined that Rule 28, Ala. R. Juv.
P., supersedes [former] § 12-15-120[, Ala. Code 1975
(amended and renumbered as § 12-15-601, Ala. Code 1975),
] and that it now governs appeals from the juvenile court.
Rule 28(A)(1) provides: 'Appeals from final orders,
judgments or decrees of the juvenile court shall be to the
appropriate appellate court....'
"In a habeas corpus case concerning alleged procedural
violations of dependent children proceedings in juvenile
court, this court stated, 'All such issues could and
should have been raised by appeal, not by habeas corpus ....
Habeas corpus may not be utilized as a substitute for an
appeal.' Morgan v. Black, 402 So.2d 1040, 1041
(Ala. Civ. App. 1981).
"R.D.P. should have appealed the order of the juvenile
court to this court pursuant to Rule 28, or petitioned the
juvenile court for a writ of habeas corpus. For the foregoing
reasons, we affirm the circuit court's dismissal of
R.D.P.'s petition for a writ of habeas corpus."
Id. at 1031.
parents in this case filed a petition for the writ of habeas
corpus in the circuit court, alleging a procedural violation
in the juvenile court. Although the parents did not file a
timely appeal to this court regarding the juvenile
court's March 31, 2016, order awarding temporary custody
of the child to DHR, the question whether the juvenile
court's order was void could have been raised in a Rule
60(b)(4), Ala. R. Civ. P., motion filed in the juvenile
court. Like the circuit court in R.D.P., the circuit
court in this case should have dismissed the petition for
lack of subject-matter jurisdiction. Cf. R.D.P.,
supra. Because a judgment entered without
subject-matter jurisdiction is void, Ex parte
Punturo, 928 So.2d 1030, 1034 (Ala. 2002); G.W. v.
Dale Cty. Dep't of Human Res., 939 So.2d 931, 934
(Ala. Civ. App. 2006), and because a void judgment will not
support an appeal, S.B.U. v. D.G.B., 913 So.2d 452,
456 (Ala. Civ. App. 2005), we dismiss the appeal with
instructions to the circuit court to set aside its void
judgment. See K.R. v. D.H., 988 So.2d 1050, 1052
(Ala. Civ. App. 2008).
OVERRULED; OPINION OF SEPTEMBER 8, 2017, WITHDRAWN; OPINION