W.S. II v. Houston County Department of Human Resources; E.A. v. Houston County Department of Human Resources
CL-2023-0794 and CL-2023-0805
ALABAMA COURT OF CIVIL APPEALS
March 21, 2025
OCTOBER TERM, 2024-2025
Rel: March 21, 2025
Appeals from Houston Juvenile Court (JU-21-344.02)
On Return from Remand
In separate appeals, W.S. II (“the father“) and E.A. (“the mother“) challenged a judgment of the Houston Juvenile Court (“the juvenile court“) terminating their parental rights to their child, E.H.S. (“the child“), on the ground that the juvenile court lacked subject-matter jurisdiction over the termination-of-parental-rights action under the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA“),
Subject-Matter Jurisdiction Under the UCCJEA
The record following remand shows that the juvenile court held a hearing on remand that consisted solely of arguments of the parties’ attorneys; the juvenile court did not receive evidence during that hearing. After the hearing, the juvenile court entered a judgment in which it found that it had “properly exercised jurisdiction in this termination action.” To reach that conclusion, the juvenile court wrote, it considered the transcript of a June 23, 2022, hearing in the prior dependency action involving the parents, the preprinted-form order of June 23, 2022, finding the child dependent and transferring custody of the child to DHR, and the initial preprinted-form order of shelter care entered on November 10, 2021, all of which are contained in the supplement to the record on return
The transcript of the June 23, 2022, hearing in the dependency action indicates that, at the outset of that hearing, the juvenile-court judge advised the attorneys that, on the issue of jurisdiction, “I think I did attempt to get up with Judge Gay in Florida, and I don‘t recall if I had a -- I‘m pretty sure I never got a response back. I‘ve called Florida several times on many cases and I never get responses back.” The juvenile-court judge then said: “But the child is in Alabama, and I‘m going to find that Alabama has jurisdiction because the child is in Alabama, and I have not had any contact with anybody in the Florida judicial system regarding this child, so I‘m going to find that I do have jurisdiction.”
The transcript from the hearing in the dependency action contains little evidence that would be helpful in determining whether the juvenile court had subject-matter jurisdiction under the UCCJEA. One witness
In its judgment following remand, the juvenile court found that the mother gave birth to the child in Alabama “in an effort to prevent Florida ... from discovering the child‘s birth” and that she was then arrested and removed to Florida. The mother‘s actions, the juvenile court found, “were the direct cause of the placement of the child in foster care in Alabama and effectively resulted in Alabama becoming the home state of the child.” The juvenile court further found that, because the mother and the father had been incarcerated in Florida at various times since the child‘s birth, “there is no home or support system for the child in Florida, nor is there any reasonable expectation for such in the foreseeable future.
“(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;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208 [of this chapter], and:
“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;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to
determine the custody of the child under Section 30-3B-207 or 30-3B-208 [of this chapter]; or “(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).”
Regarding the first of these four bases for subject-matter jurisdiction under the UCCJEA (home-state jurisdiction), the UCCJEA defines “home state,” in pertinent part, as
“[t]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned.”
Here, the dependency proceeding involving the child was initiated within days of the child‘s birth. Neither parent had ever lived in Alabama and there is no evidence indicating that either intended to live in Alabama. The mother testified that she had no connection to Alabama other than driving to Dothan once her labor started so that she could give birth to the child in Alabama. Thus, the child did not live with a parent from birth in Alabama before to DHR‘s commencement of its dependency action, and Alabama was not the child‘s home state. See H.T. v. Cleburne Cnty. Dep‘t of Hum. Res., 163 So. 3d 1054, 1065-66 (Ala. Civ. App. 2014).
The parents suggest that Florida is the child‘s home state. However, it is undisputed that the child was born in Alabama and has never resided in the Florida, whether with a parent or otherwise. Thus, under the plain language of
We also cannot conclude that a Florida court would have had significant-connection jurisdiction over the child. The record does not disclose any evidence indicating that the child had a significant
The third basis for the exercise of subject-matter jurisdiction under
We turn, then, to the fourth and final jurisdictional basis of
In his special writing, Presiding Judge Moore reaches the same result by a different path, concluding that the juvenile court properly exercised jurisdiction over this matter because its temporary emergency jurisdiction “ripened” into home-state jurisdiction when the juvenile court entered its dependency judgment. We disagree.
There is no question that the juvenile court had temporary emergency jurisdiction to award DHR custody of the child at the outset of this matter. See
“If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, [Ala. Code 1975,] a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.”
(Emphasis added.) The phrase “a child custody determination made under this section” refers only to an order that temporarily disposes of a child‘s custody in an emergency pursuant to a juvenile court‘s temporary emergency jurisdiction. Because a court‘s temporary emergency jurisdiction, in and of itself, does not confer jurisdiction on a juvenile court to decide subsequent issues of dependency, the legislature cannot
Relatedly, under
We recognize that Presiding Judge Moore‘s interpretation of
Having concluded that the juvenile court properly exercised jurisdiction over this matter pursuant to
The Mother‘s Additional Arguments
The father‘s only contention on appeal is that the juvenile court lacked jurisdiction under the UCCJEA. Having disposed of that argument, we conclude that the juvenile court‘s judgment is due to be affirmed relative to the father‘s appeal. The mother, however, raises additional contentions on appeal, and we turn now to a consideration of those arguments, starting first with a recitation of the relevant evidence.
In addition to the evidence relevant to the issue of subject-matter jurisdiction, which we set forth in our opinion on original submission, the
The child was the youngest of the mother and the father‘s seven children. The parental rights of the mother and the father to their oldest six children were terminated in Florida before the child was born. The mother testified that the original allegation against her had been that her younger brothers had burned her children with cigarettes, although she had disputed that. She also claimed that she did not use methamphetamine until after the oldest four children were removed from her custody. She said that her fifth and sixth children were taken from her because they tested positive for illegal drugs when they were born.
The mother testified that she was aware that the father was a former drug dealer but, she said, he did not start abusing illegal drugs himself until after the older children were removed from their home. The
The mother said that, although they had never married, the father and she had been in a relationship for 12 years. At the time of the trial, she said, they were no longer together, although they remained friends. However, the month before the trial, the mother posted on social media that she was in a relationship with the father. She said that she did that to show the father‘s girlfriend that the father still loved the mother.
The father testified that he had been released from incarceration in Florida in May 2022 after serving time for violating his probation and “running from the police.” He said he had eluded the police because they were trying to arrest him for something for which he claimed to be innocent, and he did not “want to just go lay down” because he knew the mother was pregnant. He said that the underlying convictions involved charges of aggravated assault with a deadly weapon, battery, and resisting arrest. However, he said, he pleaded guilty to lesser offenses that he did not specify.
The father testified that he was turning his life around and that he considered himself a role model for children. After being released from jail, the father said that, on his own initiative, he had taken part in individualized therapy and a substance-abuse assessment and parenting classes at a facility in Florida. He also contacted DHR and visited with the child when he could but conceded that he had missed numerous visits.
The father said that he would participate in services offered in Alabama to the best of his ability but that it was difficult because he was a Florida resident and was not eligible for some services. Starling said that, once the father‘s paternity was established in May 2023, DHR had offered him several services and had attempted to make referrals for services in Florida but that many places had not responded to the phone calls DHR had placed to them. The father did make use of the services offered by one of the facilities, Starling said, but it had not reported to DHR that the father had completed assessments and services as it usually did. She said that the concerns DHR had with the father were his history of drug use and housing instability. Starling also testified that, because the parents’ parental rights to the older six children had been terminated, DHR was not required to offer services to the father.
The father admitted the results of a hair-follicle drug test administered to him in May 2023, less than six months before the trial, indicated that he had used amphetamine and methamphetamine, but he claimed that he had not used drugs since June or July 2022. He said he
Starling testified that DHR performed an Accurint search for relatives of the mother and of the father and mailed letters to those family members about serving as relative resources for the child. Three of the father‘s relatives responded to the letters; however, Starling said, the father‘s paternity had not yet been adjudicated so those people were not eligible to serve as relative resources. She said that she had informed two of those relatives that, if the father became the child‘s legal father, they could contact DHR again. It is unclear from the record whether those two relatives got back in touch with DHR. One of those three failed to contact DHR after the father‘s paternity was established in May 2023, she said. A fourth relative responded on behalf of her son and his fiancée, but the relative herself said that she was not interested in caring for the child. Another of the father‘s relatives who expressed an interest in the child failed to respond to letters that DHR had sent her about completing forms for an Interstate Compact for Placement of Children (“ICPC“) request.
Starling testified that the child had lived with the same foster parents since leaving the hospital and that she had found the child to be comfortable in that placement. She added that she had observed an attachment and filial bond between the foster parents and the child that the foster parents wanted to be a “long-term resource” for the child, and that the permanency plan for the child is adoption by the foster parents. L.M., the foster mother, testified that she and her husband had bonded with the child, loved the child, and wanted to adopt the child. She said that the foster parents were the only family the child had ever known,
The mother said that she did not really know the child at all and that the child, who was almost two years old at the time of the trial, had likely bonded with the foster parents. However, she disagreed that removing the child from the foster parents would be detrimental to the child‘s health or happiness because, she said, the child had bonded with the father. She said that the father had been able to visit the child several times after he was released from prison about 18 months before the trial. Starling disagreed with the mother, saying that she believed that removing the child from the foster parents would be traumatic for the child.
On October 31, 2023, the juvenile court entered a judgment terminating the parental rights of the mother and of the father. It found that the parents were unable or unwilling to discharge their responsibilities to and for the child, that their conduct or conditions rendered them unable to properly care for the child, and that their conduct or conditions were unlikely to change in the foreseeable future. The juvenile court also determined that no viable alternatives less drastic
Because the juvenile court conducted a bench trial at which it received oral testimony, the ore tenus standard of review applies to this appeal. Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 67 (Ala. 2010). According to that standard, “[w]hen a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.” Allstate Ins. Co. v. Skelton, 675 So. 2d 377, 379 (Ala. 1996). “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So. 2d 408, 410 (Ala. 1986). The ore tenus rule applies to disputed fact issues, “whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence.” Reed v. Board of Trs. for Alabama State Univ., 778 So. 2d 791, 795 (Ala. 2000). It does not, however, apply to questions of law or the application of law to facts, which we review de novo. Espinoza v. Rudolph, 46 So. 3d 403, 412 (Ala. 2010).
When considering whether to terminate a parent‘s parental rights, a juvenile court is required to apply a two-pronged test. Ex parte T.V., 971 So. 2d 1, 4 (Ala. 2007). First, the juvenile court must determine whether there are statutory grounds for termination. Id.
“If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”
The statute provides a non-exhaustive list of factors a court should consider in determining whether to terminate parental rights.
The mother does not contend on appeal that there were not statutory grounds to terminate her parental rights. Instead, she focuses on the second prong, arguing that clear and convincing evidence did not support the juvenile court‘s finding that there were no viable alternatives to the termination of her parental rights. In support of this contention, she argues, in effect, that the father‘s parental rights should not have been terminated and that the child should have been placed with him.
As noted above, in his appeal, the father challenged only the juvenile court‘s jurisdiction over the case. He did not challenge the merits of the juvenile court‘s judgment terminating his parental rights. Although we question whether the mother has standing to argue that the father‘s parental rights should not have been terminated, see B.H. v. Marion Cnty. Dep‘t of Hum. Res., 998 So. 2d 475, 477 (Ala. Civ. App. 2008), even assuming she is permitted to raise that issue as a necessary concomitant to her argument that placing the child with him was a viable alternative to terminating her parental rights, we conclude that the mother‘s argument in this regard lacks merit.
The mother also contends that the juvenile court failed to consider placing the child in the custody of multiple paternal relatives, particularly the father‘s cousin, M.D., who testified at the trial that she was willing to serve as a relative resource for the child. The mother also points out that, after the father‘s paternity was established, DHR failed to reach out to some of the father‘s relatives who had expressed an interest in serving as relative placements in 2021, when the child was first placed in DHR‘s custody.
In the present case, the child has been in the foster parents’ home since only a few days after her birth, and the foster parents’ home is the only home the child has known. After the child‘s birth, the father waited nearly a year and a half before taking steps to establish his paternity, and, the evidence shows, he was not in prison for most of that time. There
Additionally, a juvenile court is not required to consider a relative resource for a child if “[t]he relative did not attempt to care for the child or obtain custody of the child within four months of the child being removed from the custody of the parents or placed in foster care, if the removal was known to the relative,” and the current permanency plan is adoption by the current foster parents.
Conclusion
For the reasons set forth above, we conclude that the juvenile court properly exercised subject-matter jurisdiction over this action under the UCCJEA and that neither parent has demonstrated that the juvenile court erred in terminating their parental rights. Therefore, the juvenile court‘s judgment is affirmed.
CL-2023-0794 -- AFFIRMED.
CL-2023-0805 -- AFFIRMED.
Edwards, Hanson, Fridy, and Lewis, JJ., concur.
Moore, P.J., concurs in the result, with opinion.
I agree with the main opinion that the judgment entered by the Houston Juvenile Court (“the juvenile court“) terminating the parental rights of W.S. II (“the father“) and of E.A. (“the mother“) should be affirmed, but I disagree with the jurisdictional analysis contained in the opinion. I write specially to address that issue.
The record that is now before this court upon return from remand to the juvenile court shows that, on November 2, 2021, the mother, a Florida resident, intentionally crossed state lines to give birth to E.S. (“the child“) in a Dothan hospital to evade Florida child-welfare and criminal authorities. After the mother and the child tested positive for methamphetamine, and the mother was arrested, the Houston County Department of Human Resources (“DHR“) obtained protective custody of the child and, based on those circumstances, DHR filed in the juvenile court a dependency petition relating to the child on November 9, 2021. On November 10, 2021, the juvenile court entered a shelter-care order in which it determined that it had temporary emergency jurisdiction over the case.
On June 23, 2022, the juvenile court conducted an adjudicatory hearing on the dependency petition. At that hearing, the juvenile court indicated that it had unsuccessfully attempted to contact the appropriate Florida-court judge to ascertain whether a child-custody proceeding relating to the child had been commenced in Florida. The juvenile-court judge then orally determined that it had jurisdiction under the UCCJEA
“When acting under [temporary] emergency jurisdiction, however, a juvenile court may not adjudicate a child dependent or make an award of custody, other than a pendente lite award of custody.” C.H. v. Lamar Cnty. Dep‘t of Hum. Res., 324 So. 3d 391, 395 n.2 (Ala. Civ. App. 2020) (citing M.B. v. B.B., 244 So. 3d 128, 132-33 (Ala. Civ. App. 2017), and R.S. v. B.C., 248 So. 3d 10, 13 (Ala. Civ. App. 2017)). However, the UCCJEA authorizes a court that has acquired only temporary emergency jurisdiction over a child to make a final child-custody determination in limited circumstances. See Official Comment to
“If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under [Ala. Code 1975, §§] 30-3B-201 through 30-3B-203, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under [§§] 30-3B-201 through 30-3B-203. If a child custody proceeding has not
been or is not commenced in a court of a state having jurisdiction under [§§] 30-3B-201 through 30-3B-203, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.”
In this case, the juvenile court originally awarded DHR only “pendente lite” custody of the child, and it recognized that it could not find the child dependent and award any other form of custody to DHR without first obtaining jurisdiction to do so under the UCCJEA. Upon finding that the child had been living in Alabama since his birth and that no other child-custody proceeding relating to the child had been commenced in Florida, the juvenile court determined that it could enter a final judgment finding the child dependent and awarding DHR permanent custody of the child. The juvenile court did not cite
Under
The courts of other states have indicated that, in at least some circumstances, a judgment should expressly state that it is intended as a final child-custody determination in order to satisfy
The record further indicates that Alabama had become the home state of the child before the entry of the dependency judgment. The shelter-care order vested legal and physical custody of the child in DHR, which exercised physical custody of the child through a foster-care arrangement. Since November 10, 2021, DHR had been “a person acting as a parent” toward the child within the meaning of
Once the juvenile court entered the dependency judgment, it retained continuing, exclusive jurisdiction over custody proceedings relating to the child. See
The juvenile-court judge who presided over the termination-of-parental-rights proceedings, who was not the same judge who presided over the dependency proceedings, did not analyze the jurisdictional issue exactly as I have in this special writing. However, subject-matter