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Ex parte J.M.

Alabama Court of Civil Appeals

August 17, 2018

Ex parte J.M.
v.
J.M. and B.M. In re: T.M. and E.M.

          Geneva Juvenile Court, JU-17-196.01 and JU-17-197.01

          PETITIONS FOR WRIT OF MANDAMUS

          THOMPSON, PRESIDING JUDGE.

         On November 20, 2017, T.M. and E.M. ("the paternal grandparents") filed in the Geneva Juvenile Court ("the juvenile court") petitions seeking to have their minor grandchildren, J.W.M. and N.M., declared dependent, to be awarded custody of the children, and to terminate the parental rights of J.M. ("the mother") and B.M. ("the father") to the children. In their petitions, the paternal grandparents alleged that they have had physical custody of the children since October 4, 2014.

         J.B. ("the maternal grandmother"), a Florida resident, filed a December 4, 2017, letter in the juvenile court in which she alleged, among other things, that she was the children's adoptive mother. In support of her allegation that she had adopted the children, the maternal grandmother attached to her December 4, 2017, letter an October 27, 2017, adoption judgment of the Polk County, Florida, Circuit Court ("the Florida court").

         The mother filed in the juvenile court a letter answering the petitions and an affidavit of substantial hardship. The materials before us indicate that the juvenile-court clerk returned the affidavit of substantial hardship to the mother because it was not properly notarized. The father did not respond to the paternal grandparents' petitions.

         The juvenile court conducted an ore tenus hearing on December 20, 2017. Also on December 20, 2017, the juvenile court entered orders finding the children to be dependent, awarding pendente lite custody of the children to the paternal grandparents, and scheduling both a review hearing and a "dispositional" hearing for dates in 2018. In those December 20, 2017, orders, the juvenile court found that the children had been living with the paternal grandfather since 2014 and had been residents of Alabama since 2015 and, therefore, that the children were subject to the jurisdiction of the juvenile court. The mother filed a notice of appeal as to both actions on January 2, 2018. Because the orders of the juvenile court are not final orders that would support an appeal, we have elected to treat the mother's appeal as petitions for a writ of mandamus. Ex parte T.C., 96 So.3d 123, 129 (Ala. 2012); Ex parte B.N., 203 So.3d 1234, 1240 (Ala. Civ. App. 2016).[1]

         The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, governs actions addressing issues of child custody, including dependency actions and actions seeking to terminate parental rights. § 30-3B-102(4), Ala. Code 1975; R.L. v. J.E.R., 69 So.3d 898, 901 (Ala. Civ. App. 2011); R.W. v. G.W., 2 So.3d 869, 871 (Ala. Civ. App. 2008). To properly exercise jurisdiction over the paternal grandparents' petitions, the juvenile court was required to comply with the jurisdictional requirements of the UCCJEA. R.S. v. B.C., [Ms. 2160462, Sept. 8, 2017] __So. 3d__, __(Ala. Civ. App. 2017).

         The materials before us indicate that, in 2014, the maternal grandmother, a resident of Florida, asked the paternal grandparents to take custody of the children. The paternal grandfather testified that the paternal grandparents obtained a temporary custody order from a court in South Carolina, where they lived in 2014. In 2015, before a final order could be entered in South Carolina, the paternal grandparents and the children moved to Alabama. Also in 2015, the maternal grandmother initiated her adoption action in Florida that resulted in the 2017 adoption judgment issued by the Florida court.

         At the end of the December 20, 2017, hearing, the juvenile court asked the parties to submit to it the files from the South Carolina court and from the Florida court. The juvenile court stated that it was exercising emergency jurisdiction over the children, and it afforded the parties 30 days to present to it the evidence concerning the other actions pertaining to the children.

         Under the UCCJEA, a court of this state may exercise emergency jurisdiction over an action addressing child custody if the child is present in this state and the facts warrant the exercise of that emergency jurisdiction. § 30-3B-204(a), Ala. Code 1975. This court has explained:

"An Alabama circuit or juvenile court may not make any custody determination--neither an initial custody determination nor a determination as to modification of custody--regarding a child unless that court has jurisdiction to make an initial custody determination under the UCCJEA, which jurisdiction typically turns on whether Alabama is the home state of the child. See Ala. Code 1975, § 30-3B-201 and -203 (providing when a court of this state may make an initial custody determination or modify the custody determination of a court of another state). However, in situations in which a child-custody proceeding is pending in another state or a previous child-custody determination exists, an Alabama court may exercise temporary emergency jurisdiction under § 30-3B-204 when a child is present in this state and '[the child has been abandoned or] it is necessary in an emergency to protect the child because the child ... is subjected to or threatened with mistreatment or abuse.' § 30-3B-204(a). The temporary emergency jurisdiction that an Alabama court may exercise pursuant to § 30-3B-204 is 'extremely limited,' see M.B.L. [v. G.G.L.], 1 So.3d [1048, ] 1051 [(Ala. Civ. App. (2008)], and an Alabama court must comply with the manner of exercising that jurisdiction set out in that section. LaRose v. LaRose, 71 So.3d 651, 657 (Ala. Civ. App. 2011)."

J.D. v. Lauderdale Cty. Dep't of Human Res., 121 So.3d 381, 384-85 (Ala. Civ. App. 2013) (bracketed language added).

         Thus, the jurisdiction exercised by the juvenile court in these actions was limited.[2] "A juvenile court with only temporary emergency jurisdiction cannot adjudicate the dependency of a child unless and until it first complies with § 30-3B-204 ...." G.S. v. R.L., [Ms. 2160643, Feb. 23, 2018] __So. 3d__, __ (Ala. Civ. App. 2018). In G.S. v. R.L., supra, this court held that judgments purporting to find the children at issue in that case dependent and making a custody award based on that finding were void, and this court dismissed the appeal with instructions for the juvenile court in that case to comply with the requirements of § 30-3B-204. See also J.D. v. Lauderdale Cty. Dep't of Human Res., 121 So.3d at 385 ("[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."); M.W. v. C.W., 60 So.3d 301, 305 (Ala. Civ. App. 2010) (same).

         "[T]emporary emergency jurisdiction did not authorize the juvenile court to conduct the ... dependency proceeding." S.C. v. J.T.C., 47 So.3d 1253, 1257 (Ala. Civ. App. 2010). In these cases, the juvenile court made dependency determinations, which it was without jurisdiction to do in exercising emergency jurisdiction over the children. Therefore, ...


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