Ex parte R.B. and A.L. (In re: R.B., Jr.; A.B.; B.B.)
CL-2023-0506, CL-2023-0507, CL-2023-0508
ALABAMA COURT OF CIVIL APPEALS
May 24, 2024
OCTOBER TERM, 2023-2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
CL-2023-0506
Ex parte R.B. and A.L.
PETITION FOR WRIT OF MANDAMUS
(In re: R.B., Jr.)
(Conecuh Juvenile Court: JU-22-10.02)
CL-2023-0507
Ex parte R.B. and A.L.
PETITION FOR WRIT OF MANDAMUS
(In re: A.B.)
(Conecuh Juvenile Court: JU-22-11.02)
CL-2023-0508
Ex parte R.B. and A.L.
PETITION FOR WRIT OF MANDAMUS
(In re: B.B.)
(Conecuh Juvenile Court: JU-22-12.02)
PER CURIAM.
R.B. (“the father“) and A.L. (“the mother“) petition this court for writs of mandamus directing the Conecuh Juvenile Court (“the juvenile court“) to stay cases pending in the juvenile court involving their three children, R.B., Jr.; A.B.; and B.B. (“the children“), or, in the alternative, to dismiss the underlying actions based upon lack of personal jurisdiction.
Background
On May 11, 2022, the Conecuh County Department of Human Resources (“DHR“) filed dependency petitions as to the children in the juvenile court, alleging that the father and the mother had exposed the children to domestic violence in an incident with a neighbor. The ensuing three actions were assigned case numbers of JU-22-10.01, JU-22-11.01,
On February 22, 2023, the mother filed motions for return of custody, arguing that DHR had been operating under a protective supervision order/shelter-care order and had not requested an adjudicatory or permanency hearing. The mother averred that she had moved to Georgia and was no longer in a relationship with the father.
On May 4, 2023, the juvenile court, following a hearing, entered in each action an order finding that the children were no longer dependent as to the mother and purporting to return custody to the mother. On May 22, 2023, the children‘s former foster mother (who had had physical custody of the oldest child from May 2022 to May 2023; physical custody of the middle child from September 2022 to May 2023; and physical custody of the youngest child from January 2023 to May 2023) filed motions to intervene in JU-22-10.01, JU-22-11.01 and JU-22-12.01. The juvenile court denied the motions as moot because, it said, no case was then pending in juvenile court. DHR appealed from the orders returning
On May 22, 2023, the former foster mother commenced actions for custody in the juvenile court; those actions were assigned the case numbers of JU-22-10.02, JU-22-11.02, and JU-22-12.02, respectively. The former foster mother alleged that “new and current facts” supported adjudications of dependency as to the mother and the father. It appears, based on the allegations in the underlying petitions, that the father is now living in Georgia.
On June 29, 2023, the mother filed answers to the former foster mother‘s petitions and argued that the juvenile court lacked personal jurisdiction. The mother also asked the juvenile court to stay the proceedings in JU-22-10.02; JU-22-11.02; and JU-22-12.02 because, at that time, DHR‘s appeals in JU-22-10.01, JU-22-11.01, and JU-22-12.01 were still pending and involved the same children and parents. On June 30, 2023, the father filed answers and moved to dismiss the former foster mother‘s petitions for lack of jurisdiction because, he said, the juvenile court had found that the children were no longer dependent and because
On July 20, 2023, the mother and the father filed joint petitions for a writ of mandamus seeking (1) orders staying the custody actions -- JU-22-10.02, JU-22-11.02, and JU-22-12.02 -- until the appeals in JU-22-10.01, JU-22-11.01, and JU-22-12.01 were resolved; and (2) orders dismissing the former foster mother‘s petitions in JU-22-10.02, JU-22-11.02, and JU-22-12.02 for lack of personal jurisdiction because, they contend, the mother and the children reside in Georgia.
The aspect of the parents’ mandamus petitions seeking review of the juvenile court‘s orders denying their motions to stay the custody actions -- JU-22-10.02, JU-22-11.02, and JU-22-12.02 -- until the appeals in JU-22-10.01, JU-22-11.01, and JU-22-12.01 were resolved is now moot because DHR has voluntarily dismissed its appeals in JU-22-10.01, JU-22-11.01, and JU-22-12.01. Mandamus will not issue in a case where the underlying issue has become moot. Ex parte T.R.S., 794 So. 2d 1157, 1159 (Ala. Civ. App. 2001). Additionally, DHR was the party seeking dependency adjudications in JU-22-10.01, JU-22-11.01, and JU-22-12.01, making inapplicable the parents’ argument in their mandamus petitions
This court asked the parties to address whether the juvenile court has subject-matter jurisdiction pursuant to
Standard of Review
Our standard of review is well-established:
“‘“The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ‘“‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy;
and (4) properly invoked jurisdiction of the court.‘“’ Ex parte Inverness Constr. Co., 775 So. 2d 153, 156 (Ala. 2000) (quoting Ex parte Gates, 675 So. 2d 371, 374 (Ala. 1996)); Ex parte Pfizer, Inc., 746 So. 2d 960, 962 (Ala. 1999).“’ ”Ex parte Vest, 68 So. 3d 881, 884 (Ala. Civ. App. 2011) (quoting Ex parte Children‘s Hosp. of Alabama, 931 So. 2d 1, 5-6 (Ala. 2005)).”
Ex parte M.A.G., 160 So. 3d 22, 24 (Ala. Civ. App. 2014).
The issue of subject-matter jurisdiction is reviewable by way of a petition for a writ of mandamus. Ex parte C.G., [Ms. CL-2023-0757, Jan. 12, 2024] ___ So. 3d ___ (Ala. Civ. App. 2024). A timely petition for the writ of mandamus is also a proper method for presenting a challenge to the denial of a party‘s motion to dismiss for lack of personal jurisdiction. Ex parte Sperry, 377 So. 3d 560, 562 (Ala. Civ. App. 2022).
Discussion
One of the purposes of the UCCJEA is to facilitate cooperation between courts in different states in issuing custody and visitation orders. Ex parte Siderius, 144 So. 3d 319 (Ala. 2013).
“‘The UCCJEA is a jurisdictional act that establishes subject-matter jurisdiction over child-custody proceedings.’ H.T. v. Cleburne Cty. Dep‘t of Human Res., 163 So. 3d 1054, 1062 (Ala. Civ. App. 2014). The UCCJEA differentiates between a court‘s jurisdiction to make an ‘initial child custody determination’ and a court‘s ‘continuing, exclusive
jurisdiction’ over a child-custody determination. See §§ 30-3B-201 and-202, Ala. Code 1975 . A ‘child custody proceeding’ is ‘[a] proceeding in a court in which legal custody, physical custody, or visitation with respect to a child is an issue’ and includes proceedings alleging dependency and seeking termination of parental rights.§ 30-3B-102(4), Ala. Code 1975 . A ‘child custody determination’ is defined as ‘[a] judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order.’§ 30-3B-102(3) . An ‘initial determination’ is defined as ‘[t]he first child custody determination concerning a particular child.’§ 30-3B-102(8) .”
A.M. v. Houston Cnty. Dep‘t of Hum. Res., 262 So. 3d 1210, 1216 (Ala. Civ. App. 2017).
The UCCJEA recognizes four categories of subject-matter jurisdiction: (1) initial child-custody jurisdiction, see
In the present case, the juvenile court made initial child-custody determinations, pursuant to its temporary emergency jurisdiction under
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; ....”
Under
A person, other than a parent, who:
“a. Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and
“b. Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.”
“The term ‘person acting as a parent’ has been slightly redefined. It has been broadened from the definition in the [former Uniform Child Custody Jurisdiction Act, the predecessor to the UCCJEA,] to include a person who has acted as a parent for a significant period of time prior to the filing of the custody proceeding as well as a person who currently has physical custody of the child. In addition, a person acting as a parent must either have legal custody or claim a right to legal custody under the law of this state. The reference to the law of this State means that a court determines the issue of whether someone is a ‘person acting as a parent’ under its own law. This reaffirms the traditional view that a court in a child custody case applies its own substantive law. The court does not have to undertake a choice-of-law analysis to determine whether the individual who is claiming to be a person acting as a parent has standing to seek custody of the child.”
In Patrick v. Williams, 952 So. 2d 1131 (Ala. Civ. App. 2006), this court held that a grandparent may satisfy the requirements set forth in
In B.B. v. L.W., 163 So. 3d 1042 (Ala. Civ. App. 2014) (plurality opinion), this court addressed whether the grandmother in that case met the definition of “person acting as a parent” under
On July 5, 2012, the mother in B.B. v. L.W. filed an emergency petition in the Tuscaloosa Circuit Court (“the Alabama court“) seeking an order compelling delivery of the child to her. The record contained a letter from the Michigan court to the grandmother dated July 2006, informing the grandmother that the guardianship that had been granted to her by that court was valid only as long as she resided in Michigan. The Alabama court determined that it had jurisdiction as the “home state” of the child under the UCCJEA. This court, in addressing the grandmother‘s argument that she met the definition of a “person acting as a parent” under
“The grandmother, in reliance on
§ 30-3B-102(13) , asserts that, because the child had been in her physical custody for more than six months at the time the mother filed the petition for a writ of assistance in the trial court, Alabama is the proper jurisdiction in which to determine custody of the child. However, our analysis of the UCCJEA does not simply rest upon the child‘s residency over the six months preceding the initiation of these proceedings. To be sure, we do not take lightly the allegations that the child had been abused. However, we cannot condone the unilateral decision of a grandparent, or of any party, to deprive a parent of the fundamental right to custody of his or her child with no legal justification. The grandmother did not invoke the temporary emergency jurisdiction of the trial court pursuant to§ 30-3B-204(a), Ala. Code 1975 , nor did she file a petition asserting that the child was dependent when she first discovered the alleged abuse.“We are further unpersuaded by the grandmother‘s argument that
§ 30-3B-102(13) does not require that the ‘“claim to legal custody” to be good or bad,’ or, in other words, that a person acting as a parent need not have a colorable claim to custody. Citing Smith v. Smith, 922 So. 2d 94, 99 (Ala. 2005), the grandmother asserts that she was standing ‘in loco parentis.’ Our supreme court decided in Smith that the trial court had erroneously accorded individuals that, although family members, were essentially acting as babysitters in loco parentis status. Id. at 100. The underlying issues in Smith were various tort claims relating to the accidental death of a child; our supreme court did not address whether someone acting in loco parentis satisfied the requirements of the UCCJEA. Id. at 96-100. We agree with the North Dakota Supreme Court that, ‘[a]bsent a requirement of mandating a colorable claim [to custody], the underlying policies of the UCCJEA and the [Parental Kidnapping Prevention Act] would be frustrated as nonparents execute ‘interstate abductions and other unilateral removals of children [ ] to obtain custody and visitation awards.” Rogers [v. Platt], [199
B.B. v. L.W., 163 So. 3d at 1048-49 (plurality opinion).
In the present cases, Alabama did not become the home state of the children under
The fact that the former foster mother is now claiming a right to legal custody of the children does not alter the outcome. Even if we were to presume that the former foster mother could somehow qualify as “a person acting as a parent” by virtue of filing of the three new dependency petitions, it remains true that she was not “a person acting as a parent” when she was acting as the foster parent for the children in the preceding
At the point the former foster mother filed the three new dependency petitions, it appears that no state had home-state jurisdiction over the children. They had moved to Georgia only two weeks earlier, so that state did not have home-state jurisdiction, and, as explained above, Alabama also did not have home-state jurisdiction. In these circumstances,
“a. The child and the child‘s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child‘s care, protection, training, and personal relationships.”
In this case, the parents, who no longer live in Alabama, do not have a significant connection with Alabama. Likewise, it appears that the children do not have any significant connection to Alabama. They were brought to this state in their tender years by their parents and resided here for only six weeks before being placed into foster care. Once the juvenile court determined that the children were not dependent, they
We note that more-appropriate-forum jurisdiction and last-resort jurisdiction, as set out in
Conclusion
The juvenile court made its initial custody determinations pursuant to its temporary emergency jurisdiction. Alabama lacked continuing jurisdiction over the former foster mother‘s custody petitions filed subsequent to the emergency petitions under the UCCJEA. Therefore,
CL-2023-0506 -- PETITION DISMISSED IN PART AND GRANTED IN PART; WRIT ISSUED.
CL-2023-0507 -- PETITION DISMISSED IN PART AND GRANTED IN PART; WRIT ISSUED.
CL-2023-0508 -- PETITION DISMISSED IN PART AND GRANTED IN PART; WRIT ISSUED.
Moore, P.J., and Hanson and Lewis, JJ., concur.
Edwards, J., concurs in the result, with opinion.
Fridy, J., recuses himself.
R.B. (“the father“) and A.L. (“the mother“) have filed in this court petitions for the writ of mandamus seeking review of the Conecuh Juvenile Court‘s denial of their motions to stay and their motions to dismiss the dependency and custody actions relating to their children, R.B., Jr., A.B., and B.B. (“the children“), which had been filed by the children‘s former foster mother, B.B.C. (“the former foster mother“), on May 22, 2023.4 The children had been the subject of previous dependency actions instituted in the Conecuh Juvenile Court (“the juvenile court“) in May 2022 by the Conecuh County Department of Human Resources (“DHR“).5 The juvenile court, in orders entered on May 4, 2023, determined that the children were not dependent, relieved DHR of its temporary legal custody of the children, and ordered that the children be
In August 2023, after the mother and the father had filed their petitions for the writ of mandamus in July 2023, DHR dismissed its appeals. Therefore, like the main opinion, I conclude that, insofar as the mother and the father request that the dependency and custody actions commenced by the former foster mother be stayed pending the outcome of those appeals, the petitions have been mooted. See Ex parte Autauga Cnty. Dep‘t of Hum. Res., 353 So. 3d 542, 547 (Ala. Civ. App. 2021) (determining that issue presented in petition for the writ of mandamus had been mooted by the dismissal of an underlying action). I would not further discuss the arguments of the mother and the father respecting the request that the former foster mother‘s actions be stayed.7
The “new and current facts” alleged in the former foster mother‘s petitions are neither new nor current, and, in fact, are the same allegations that the juvenile court had resolved in favor of the mother in the May 4, 2023, judgments. Thus, I conclude that the former foster mother‘s petitions should have been dismissed because they were barred by the doctrine of res judicata.
“In Hughes v. Martin, 533 So. 2d 188 (Ala. 1988), this Court explained the rationale behind the doctrine of res judicata:
“‘“Res judicata is a broad, judicially developed doctrine, which rests upon the ground that public policy, and the interest of the litigants alike, mandate that there be an end to litigation; that those who have contested an issue shall be bound by the ruling of the court; and that issues once tried shall be considered forever settled between those same parties and their privies.”
“‘533 So. 2d at 190. The elements of res judicata are
“‘“(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.”
“’Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala. 1998). “If those four elements are present, then any claim that was, or that could have been, adjudicated in the prior action is barred from further litigation.” 723 So. 2d at 636. Res judicata, therefore, bars a party from asserting in a subsequent action a claim that it has already had an opportunity to litigate in a previous action.‘”
Ex parte H.A.S., 308 So. 3d 533, 540-41 (Ala. Civ. App. 2020) (quoting Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So. 2d 507, 516-17 (Ala. 2002)).
DHR‘s concluded dependency actions and the former foster mother‘s new actions present the same claim -- that the children are dependent based on the conduct of the mother and the father. The May 4, 2023, judgments, which were entered by a court of competent jurisdiction, terminated DHR‘s dependency actions on the merits by concluding that DHR had failed to establish that the children were dependent. Because the former foster mother‘s relationship to the children resulted from her being a foster parent licensed by DHR and from DHR‘s placement of the children in her care, she is a party in privity
In my opinion, the former foster mother alleges no new facts in her petitions, and her petitions were due to be dismissed on the basis of the doctrine of res judicata. I would grant the petitions for a writ of mandamus and direct the juvenile court to dismiss the former foster mother‘s petitions not because the juvenile court lacked subject-matter jurisdiction but because of the application of the doctrine of res judicata.9 Accordingly, I concur in the result of the main opinion.