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M.B. v. B.B.

Alabama Court of Civil Appeals

May 4, 2018

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

          Appeals from Lee Juvenile Court (JU-15-303.01, JU-15-303.02, and JU-15-303.03)

          THOMPSON, Presiding Judge.

         This is the second time M.B. ("the mother") and B.B. and A.B. ("the custodians") have been before this court. In our earlier opinion, we set forth the procedural history as follows:

"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. On approximately January 10, 2015, the mother was arrested for driving under the influence after being stopped for a minor traffic violation. 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. The child has lived in the custodians' home since January 29, 2015."

M.B. v. B.B., [Ms. 2160373, Aug. 4, 2017] __So. 3d__, __ (Ala. Civ. App. 2017) (footnotes omitted).

         On June 17, 2015, the custodians filed a petition in the Lee Juvenile Court ("the juvenile court") seeking to have the child declared dependent and requesting an award of custody of the child. That action was designated as case number JU-15-303.01. On July 24, 2015, the juvenile court entered a pendente lite order in case number JU-15-303.01 in which it, among other things, found the child to be dependent and awarded custody of the child to the custodians. In that July 24, 2015, order, the juvenile court specified that, if the issue of dependency was not resolved or if a "request for a return of custody" was not filed before July 1, 2016, the July 24, 2015, order would become final.[1]

         On June 30, 2016, the mother filed a petition seeking the return of custody of the child. The juvenile-court clerk designated that petition as initiating case number JU-15-303.02; however, as this court noted in M.B. v. B.B., __So. 3d at__, "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." The juvenile court conducted an ore tenus hearing, and on February 14, 2017, the juvenile court entered a judgment in case number JU-15-303.02 in which it again found the child to be dependent, awarded custody of the child to the custodians, and ordered that the action be closed.[2] The mother timely appealed that judgment. M.B. v. B.B., supra. This court reversed the February 14, 2017, judgment and remanded the cause to the juvenile court for the juvenile court to examine and determine whether it had subject-matter jurisdiction. M.B. v. B.B., supra.

         In M.B. v. B.B., supra, this court, ex mero motu, questioned the jurisdiction of the juvenile court to consider the dependency action, including the mother's petition seeking the return of custody, and to enter a judgment finding the child to be dependent. In that opinion, this court noted that the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, governs custody actions, including dependency actions. M.B. v. B.B., __So. 3d at__ (citing § 30-3B-102(4), Ala. Code 1975; M.B.L. v. G.G.L., 1 So.3d 1048, 1050 (Ala. Civ. App. 2008); and H.T. v. Cleburne Cty. Dep't of Human Res., 163 So.3d 1054, 1062 (Ala. Civ. App. 2014)). This court observed that because the child had not been in Alabama for six months at the time the dependency action was filed, "[i]t did not appear that" Alabama "could be said to be the child's 'home state' under" the UCCJEA and, therefore, that the record did not demonstrate that the juvenile court had jurisdiction to resolve that action.[3] M.B. v. B.B., So.3d at . However, this court noted that the juvenile court could exercise emergency jurisdiction under the UCCJEA and that, under certain conditions, that emergency jurisdiction might ripen into subject-matter jurisdiction over the dependency action. M.B. v. B.B., supra. This court explained:

"We acknowledge that, under certain circumstances, an Alabama court may take actions pertaining to a child under the emergency-jurisdiction provision of the UCCJEA. See § 30-3B-204, Ala. Code 1975. However, 'a juvenile court exercising temporary emergency jurisdiction under § 30-3B-204 does not have jurisdiction to adjudicate dependency and award custody by virtue of the limited jurisdiction provided to it.' J.D. v. Lauderdale Cty. Dep't of Human Res., 121 So.3d 381, 385 (Ala. Civ. App. 2013). ... However, in order to properly exercise subject-matter jurisdiction after utilizing emergency jurisdiction under the UCCJEA, the juvenile court would have had to comply with the requirements of § 30-3B-204, including provisions specifying that it communicate with a Colorado court that might have exercised jurisdiction over the child.[4] The record before this court contains no indication that the juvenile court has done so."

M.B. v. B.B., So.3d at (footnote omitted). This court reversed the February 14, 2017, judgment in case number JU-15-303.02 and remanded the cause for the juvenile court to conduct further proceedings and to receive further evidence, if necessary, to determine whether it could properly exercise subject-matter jurisdiction over the proceedings in the juvenile court. M.B. v. B.B., So.3d at . This court's opinion concluded:

"[G]iven the lack of evidence in this case pertaining to whether the juvenile court properly exercised jurisdiction over the dependency action, we reverse the judgment of the juvenile court and remand the cause for a timely determination by the juvenile court, based, if necessary, on its receipt of additional evidence, on the issue of its jurisdiction under the UCCJEA. D.B. v. Coffee Cty. Dep't of Human Res., [26 So.3d 1239 (Ala. Civ. App. 2009)]; M.J.P. v. K.H., 923 So.2d 1114, 1117 (Ala. Civ. App. 2005)."

M.B. v. B.B., __So. 3d at __.

          On remand, the juvenile court ordered the parties to gather information on the issue of whether there existed any past or current proceedings concerning the child in the Colorado courts, and it scheduled a hearing for September 5, 2017. On September 1, 2017, the mother filed a motion to set aside or vacate the juvenile court's orders in the dependency action on the basis of a lack of subject-matter jurisdiction.

         On September 5, 2017, the juvenile court conducted a hearing at which it heard the arguments of the parties' attorneys. The juvenile court did not receive any evidence at that September 5, 2017, hearing. Also on September 5, 2017, the custodians initiated a new action, designated as case number JU-15-303.03, in ...


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