133 So. 3d 396
Ala. Civ. App.2013Background
- D.N.R. was born in Pennsylvania in 1993; biological mother consented to termination of parental rights in 1998.
- Pennsylvania court awarded custody to custodian (the custodian) in 2006, with J.M. visitation and records access; K.R. would receive custody upon custodian’s incapacity or death.
- D.N.R. moved to Alabama with the custodian in 2006; D.N.R. was placed in DHR custody in Lauderdale County in 2011.
- July 20, 2011 shelter-care hearing: DHR stipulated dependency; custodian did not stipulate and sought to testify; court declared D.N.R. dependent and placed with DHR pending adjudicatory hearing.
- August 26, 2011 adjudicatory hearing: custodian stipulated to dependency; court reiterates dependency; no appeal by custodian.
- July 2012–August 2012: custody/ permanency proceedings lead to return to biological mother; August 20, 2012 cease-and-desist order restricting publication of identifying information; custodian and sister appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alabama had jurisdiction to modify a Pennsylvania custody determination under UCCJEA | Custodian contends lack of subject-matter jurisdiction under UCCJEA. | Alabama could modify since Pennsylvania no longer had continuing jurisdiction and D.N.R. resided in Alabama. | Alabama had jurisdiction; lawful under UC-CJEA to modify initial determination. |
| Whether the July 21, 2011 dependency finding was supported by clear and convincing evidence | Custodian alleges lack of clear and convincing evidence of dependency. | DHR and GAL ad litem supported dependency; record shows dependency at adjudicatory stage was appropriate. | Dependency finding supported by clear and convincing evidence; within trial court’s discretion. |
| Whether the custodian’s appeal of the July 21, 2011 order was timely | Custodian argues appeal timely. | Appeal was untimely under Rule 28(C) timelines. | Appeal dismissed for lack of timely filing; no jurisdiction to review July 21 order. |
| Whether the July 26, 2012 dependency order and postjudgment motions were properly decided | Custodian challenges dependency proof and postjudgment rulings. | Trial court’s dependency finding and postjudgment rulings merited deference; no abuse of discretion. | Dependency supported; postjudgment motion denial affirmed; evident court did not err. |
| Whether the August 20, 2012 cease-and-desist order violated confidentiality or First Amendment rights | Custodian asserts First Amendment rights; order improperly chilled speech. | Order protects confidentiality under § 12-15-133(g) and was appropriate to limit disclosure. | Court remanded to vacate cease-and-desist order; but concurrence splits on necessity of vacatur; confidentiality statute applied. |
Key Cases Cited
- Boschert Merrifield Consultants, Inc. v. Masonite Corp., 897 So.2d 1048 (Ala. 2004) (standing to appeal requires party status; notice of appeal must invoke jurisdiction)
- M.B.L. v. G.G.L., 1 So.3d 1048 (Ala. Civ. App. 2008) (subject-matter jurisdiction cannot be waived; de novo review on custody jurisdiction questions)
- Daughtry v. Mobile County Sheriff’s Dep’t, 536 So.2d 953 (Ala. 1988) (timeliness and standing concepts for appeals)
- S.B. U. v. D.G.B., 913 So.2d 452 (Ala. Civ. App. 2005) (subject-matter jurisdiction may be raised at any time)
- J.S.M. v. P.J., 902 So.2d 89 (Ala. Civ. App. 2004) (clear and convincing standard described)
- Mullins v. Sellers, 80 So.3d 935 (Ala. Civ. App. 2011) (appellate citation requirements; failure to brief authorities)