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W.L. v. D.B.

Alabama Court of Civil Appeals

July 13, 2018

D.B. and R.B.

          Appeal from Escambia Juvenile Court (JU-16-106.02)

          PITTMAN, JUDGE.

         W.L. ("the father") appeals from a judgment of the Escambia Juvenile Court ("the juvenile court") denying his petition seeking custody of G.A.M. ("the child"), a boy born in June 2016. Because we conclude that the juvenile court did not have before it a necessary party who should have been joined if feasible, we reverse and remand.

         M.M. ("the mother") gave birth to the child prematurely after only 25 weeks of gestation. The child was born with life-threatening medical problems and was treated in the intensive-care unit of a hospital for eight months after his birth. When the final hearing in this action was held, the child was approximately 16 months old and still required 24hour care.

         In July 2016, the Escambia County Department of Human Resources ("DHR") filed a dependency petition, which was assigned case number JU-16-106.01, alleging that the mother was unable to care for the child and that the identity of the child's father was unknown. DHR's petition alleged that, the day after the child's birth, it had received a report that the mother had had cocaine, methamphetamine, and amphetamines in her system when she had given birth to the child and that the child also had had illegal drugs in his system. DHR's petition further alleged that it had an ongoing investigation of the mother based on a report that she had neglected her other child and that the mother had informed DHR that she had criminal charges pending against her in both Alabama and Florida. The petition asked the juvenile court to award temporary custody of the child to D.B. and R.B. ("the grandparents"), the child's maternal grandfather and maternal stepgrandmother. Following a hearing, the juvenile court entered an order finding that the child was dependent, awarding the grandparents pendente lite custody of the child, granting the grandparents the authority to secure emergency medical treatment for the child while he was in their custody, and providing that the mother could have supervised visitation with the child at the discretion of the grandparents.

         In September 2016, the father filed a petition for custody of the child, which was assigned case number JU-16-106.02 ("the .02 action"). The juvenile court appointed a guardian ad litem to represent the child and appointed counsel to represent the father. The grandparents were served with process; however, no attempt was made to serve the mother with process. The juvenile court subsequently entered an order requiring DNA testing of the father and the child, and the mother was served with a copy of that order by certified mail while she was incarcerated in Santa Rosa County, Florida. The mother never filed any pleadings or motions or appeared at any hearings in the .02 action. The results of the DNA test established that the father was indeed the child's father. In September 2017, the juvenile court entered an order awarding the father two hours of visitation with the child each Saturday, with the visitation to be supervised by the grandparents. Following a final hearing, the juvenile court entered a judgment that implicitly found that the child remained dependent, found that the father did not have the necessary family-support system to provide the child with the 24-hour care he needed, found that the grandparents did have such a family-support system, denied the father's petition for custody, maintained the grandparents' pendente lite custody, and maintained the visitation previously awarded the father.

         The father timely filed a postjudgment motion, which the juvenile court denied. The father then timely filed a notice of appeal. This court has jurisdiction over the appeal pursuant to Rule 28(A)(1)(c)(i), Ala. R. Juv. P.

         Neither the father nor the grandparents raised an issue regarding the failure to join the mother as a party in the juvenile court, and neither the father nor the grandparents have raised that issue on appeal. However,

"'[f]ailure of the plaintiff or the trial court to add a necessary and indispensable party, and of the defendant to raise the absence of such party in his or her pleadings, does not necessarily dispose of the issue. This defect can be raised for the first time on appeal by the parties or by the appellate court ex mero motu.'"

Chicago Title Ins. Co. v. American Guar. & Liab. Ins. Co., 892 So.2d 369, 371 (Ala. 2004) (quoting J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850 (Ala. 1981)).

         In pertinent part, Rule 19, Ala. R. Civ. P., provides:

"(a) Persons to Be Joined if Feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.
"(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a ...

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