Juvenile Court Lacked Jurisdiction to End Parental Rights and Order Adoption Part 2

REL: 3/25/2011
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)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2010-2011
_________________________
2100050
_________________________
R.L.
v.
J.E.R. and S.L.R.
Appeal from Calhoun Juvenile Court
(JU-10-08.01)
THOMPSON, Presiding Judge.
R.L. ("the mother") appeals from a judgment of the
Calhoun Juvenile Court terminating her parental rights to
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The judgment also terminated the parental rights of the 1
child's father. The identity of the father was unknown; the
child's birth certificate, which is included in the record,
does not include information regarding the father. Notice of
the termination hearing was served by publication to any
putative father. No one claiming to be the child's father has
participated in these proceedings at any level.
Although it is not entirely clear from the record on 2
appeal, from the mother's testimony it appears that she had
been placed on probation after a conviction for possession of
marijuana.
2
I.M.L. ("the child"). Six days after entering the judgment 1
terminating the mother's parental rights, the juvenile court
entered a second judgment allowing J.E.R. and S.L.R. ("the
adoptive parents") to adopt the child.
The record indicates the following. The mother lives in
Georgia. The child's birth certificate indicates that he was
born in Riverdale, Georgia, on January 30, 2009; the mother
testified, however, that she believed the child was born on
January 31, 2009. After the child was born, he lived with the
mother in Georgia.
The mother testified that she became aware that an arrest
warrant had been issued for her and that she was facing up to
six months in prison for violating the terms of her
probation. The mother testified that her aunt told her that 2
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3
the adoptive parents were unable to have children and wanted
to adopt a baby. Because the mother was not getting along
with her own mother at the time, she said, she agreed to allow
the adoptive parents to have temporary custody of the child
while she was in jail.
On August 29, 2009, the adoptive parents, who live in
Piedmont, Alabama, traveled to Georgia to take physical
custody of the child. On that day, the mother signed a
document titled "Power of Attorney Delegating Parental
Rights," which allowed the adoptive parents to have custody of
the child for six months unless earlier revoked by the mother.
The mother's signature does not appear on a separate document
in the record titled "Single Parent Consent to Adoption," and
the mother testified that she did not intend for the adoptive
parents to adopt the child. However, the adoptive parents
testified that they believed the mother had intended for the
arrangement to be permanent, and their intention at that time
was to adopt the child. The adoptive parents returned to
Piedmont with the child on August 29, 2009.
The mother was incarcerated shortly after the adoptive
parents took custody of the child. On September 17, 2009, the
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adoptive parents filed in the Calhoun Probate Court a petition
seeking to adopt the child. The mother was served with the
petition while she was still incarcerated in Georgia. The
mother testified that she served about one month in jail for
the probation violation. After the mother was released from
jail, the probate court held a hearing on the matter of the
child's adoption. The mother attended the hearing and
contested the adoption. On December 16, 2009, the probate
court entered an order transferring the matter to the juvenile
court "for further disposition."
On June 3, 2010, the juvenile court held a hearing during
which evidence was presented ore tenus. At the outset of the
hearing, the mother moved to dismiss the proceedings because,
she said, the child's home state was Georgia; thus, she
asserted, the juvenile court had no jurisdiction over the
child. The juvenile court denied the mother's motion to
dismiss, stating that the issue of jurisdiction had not been
raised in the probate court and noting that, at the time of
the juvenile court hearing, the child had been in Alabama for
nine months.
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5
On September 9, 2010, the juvenile court entered a
judgment finding that the child was dependent and terminating
the mother's parental rights. On September 15, 2010, the
juvenile court entered a judgment granting the adoptive
parents' petition to adopt the child. On September 22, 2010,
the mother filed a motion for relief from the judgment
terminating her parental rights pursuant to Rule 60(b)(4),
Ala. R. Civ. P., on the ground that the judgment was void for
lack of jurisdiction. Pursuant to Rule 59, Ala. R. Civ. P.,
she also filed a postjudgment motion to alter, amend, or
vacate the judgment terminating her parental rights. The
postjudgment motion to alter, amend, or vacate was deemed
denied by operation of law on October 6, 2010. See Rule 1(B),
Ala. R. Juv. P. We note, however, that a motion filed
pursuant to Rule 60(b), Ala. R. Civ. P., is not subject to
being denied by operation of law. See Rule 59.1, Ala. R. Civ.
P.; see also Ex parte Keith, 771 So. 2d 1018, 1021 (Ala.
1998). Even though the juvenile court never ruled on the
mother's Rule 60(b)(4) motion, a motion filed pursuant to
Rule 60(b) does not affect the finality of a judgment or
suspend its operation. Ex parte R.S.C., 853 So. 2d 228, 233-
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34 (Ala. Civ. App. 2002). Therefore, the mother's appeal to
this court was not premature and was timely filed.
The mother contends that the judgment terminating her
parental rights to the child is void because, she says,
Georgia is the child's home state; thus, she asserts, the
juvenile court did not have jurisdiction over the child. This
action began with a petition for adoption, filed in the
probate court. The jurisdiction of Alabama courts in adoption
matters is set forth in § 26-10A-3, Ala. Code 1975, which
provides:
"The probate court shall have original
jurisdiction over proceedings brought under the
chapter. If any party whose consent is required
fails to consent or is unable to consent, the
proceeding will be transferred to the court having
jurisdiction over juvenile matters for the limited
purpose of termination of parental rights. The
provisions of this chapter shall be applicable to
proceedings in the court having jurisdiction over
juvenile matters."
(Emphasis added.) The mother refused to consent to the
adoption; therefore, pursuant to § 26-10A-3, the probate court
was required to transfer the matter to the court having
jurisdiction to determine whether the mother's parental rights
were due to be terminated.
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Alabama has adopted the Uniform Child Custody
Jurisdiction and Enforcement Act ("UCCJEA"), codified at §
30-3B-101 et seq., Ala. Code 1975, to govern child-custody
disputes involving, or potentially involving, more than one
jurisdiction. A "child-custody proceeding" is defined in the
UCCJEA to include not only divorce actions involving the
custody of a child, but also, among others, "dependency, ...
[and] termination of parental rights" actions in which the
issue of child custody is addressed. § 30-3B-102(4). The
term "child-custody proceeding" does not include an adoption
proceeding. Id.
In D.B. v. M.A., 975 So. 2d 927, 937 (Ala. 2006), this
court held that, in a consolidated adoption and custody case
such as the case at bar, when a juvenile court must determine
whether to terminate a parent's parental rights before
adoption proceedings can continue, the UCCJEA applies to the
custody determination. Section 30-3B-201 of the UCCJEA sets
forth the following relevant requirements that must be met for
a trial court to have subject-matter jurisdiction over a
child-custody determination:
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"(a) Except as otherwise provided in Section
30-3B-204, a court of this state has jurisdiction to
make an initial child custody determination only if:
"(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, 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; or
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"(4) No court of any other state would
have jurisdiction under the criteria
specified in subdivision (1), (2), or (3).
"(b) Subsection (a) is the exclusive
jurisdictional basis for making a child custody
determination by a court of this state."
The UCCJEA defines "home state" 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." § 30-3B-102(7),
Ala. Code 1975. The definition further notes that "[a]
temporary absence of the child or any of the mentioned persons
is part of the period." Id.
At the time the adoption proceeding was initiated, aside
from the child's "temporary absence" from Georgia while he was
in the adoptive parents' custody, the child had lived with his
mother in Georgia for six consecutive months immediately
preceding the filing of the adoption petition, and the mother
continued to live in Georgia during the child's "temporary
absence"; thus, Georgia was the child's home state. See § 30-
3B-102(7), Ala. Code 1975. Even if we were to consider the
termination-of-parental-rights proceeding as a separate
proceeding, the probate court transferred the matter to the
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juvenile court on December 16, 2009, approximately three and
one-half months after the adoptive parents took the child from
Georgia; thus, the child had not resided in Alabama for six
consecutive months immediately preceding the litigation.
Therefore, we conclude that Georgia was the child's home state
at the commencement of the proceedings. See § 30-3B-102(7).
Because Alabama was not the home state of the child, an
Alabama court could not make an initial custody determination
unless (1) Georgia had declined to exercise jurisdiction, (2)
the child and at least one parent or person acting as the
child's parent had significant connections with Alabama, and
(3) substantial evidence concerning the child's care,
protection, training and personal relationships was available
for the Alabama court's review. See § 30-3B-201(a)(2), Ala.
Code 1975, (emphasis added). There is no evidence in the
record to indicate that a Georgia court had declined to
exercise jurisdiction over the issue of the child's custody;
thus, an Alabama court could not properly make a determination
regarding the mother's parental rights, which would
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The exception to the inability of a court to exercise 3
jurisdiction when the prerequisites of § 30-3B-201 are not met
is when a court exercises "emergency jurisdiction" under the
UCCJEA. Section 30-3B-204(a), Ala. Code 1975, provides that
an Alabama court "has temporary emergency jurisdiction if the
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, or a sibling or parent of the child,
is subjected to or threatened with mistreatment or abuse."
The UCCJEA defines "abandoned" as "[l]eft without provision
for reasonable and necessary care or supervision." § 30-3B-
102(1), Ala. Code 1975. In this case, the mother had made
provision for the child's reasonable and necessary care or
supervision by making arrangements for the adoptive parents to
have custody of the child while the mother was incarcerated
and by executing the "Power of Attorney Delegating Parental
Rights." There is no allegation that the adoptive parents
have abandoned the child or that the child has been
mistreated, abused, or threatened with abuse while in the
adoptive parents' custody. Thus, the juvenile court's
"emergency jurisdiction" would not have been triggered in this
case.
11
necessarily involve an initial child-custody determination as
to the child. 3
Based on the record before us and the authority cited
earlier, we hold that the juvenile court did not have
jurisdiction to terminate the mother's parental rights.
"Without subject-matter jurisdiction, any judgment entered in
the action is void." Eagerton v. Second Econ. Dev. Coop.
Dist. of Lowndes County, 909 So. 2d 783, 788 (Ala. 2005). A
void judgment will not support an appeal. T.B. v. T.H., 30
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So. 3d 429, 433 (Ala. Civ. App. 2009). Accordingly, we
dismiss the mother's appeal as being from a void judgment, and
we remand this cause to the juvenile court to vacate the
judgment terminating the mother's parental rights.
Although the mother did not explicitly appeal from the
juvenile court's judgment of adoption, this court must sua
sponte recognize and address the juvenile court's lack of
subject-matter jurisdiction to enter that judgment, because
"'this Court is duty bound to notice ex mero motu the absence
of subject-matter jurisdiction.'" Baldwin County v. Bay
Minette, 854 So. 2d 42, 45 (Ala. 2003) (quoting Stamps v.
Jefferson County Bd. of Educ., 642 So. 2d 941, 945 n.2 (Ala.
1994)).
In Ex parte C.L.C., 897 So. 2d 234, 238 (Ala. 2004), our
supreme court held that, generally, a juvenile court does not
have jurisdiction to enter a judgment of adoption. The court
in C.L.C. explained its holding as follows:
"'"Adoption is not merely an arrangement between the
natural parents and adoptive parents, but is a
status created by the state acting as parens
patriae, the sovereign parent. Because the exercise
of sovereign power involved in adoption curtails the
fundamental rights of the natural parent[s], the
adoption statutes must be closely adhered to."' Ex
parte Sullivan, 407 So. 2d 559, 563 (Ala. 1981)
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The "transfer" mechanism provided for in § 12-12-35 4
requires the filing of a motion by a party to the probate
court adoption proceeding to transfer the action to the
district court.
13
(quoting Davis v. Turner, 337 So. 2d 355, 360-61
(Ala. Civ. App. 1976)).
"'Once jurisdiction has attached in one court,
that court has the exclusive right to continue its
exercise of power until the completion of the case,
and is only subject to appellate authority.' Wesson
v. Wesson, 628 So. 2d 953, 953 (Ala. Civ. App.
1993). '[W]hen [a] court has no power to sit, nor
has general jurisdiction over that nature of
proceeding or over the parties, it cannot make any
effective order.' Carter v. Mitchell, 225 Ala. 287,
292, 142 So. 514, 518 (1932).
"The 'primary jurisdiction over adoption
proceedings is in the probate court.' B.W.C. v.
A.N.M., 590 So. 2d 282, 283 (Ala. Civ. App. 1991).
'[U]nless [a] juvenile court acquire[s] jurisdiction
over a petition to adopt by the "transfer" mechanism
found in § 12-12-35, [Ala.] Code 1975, the [4]
juvenile court [is] without authority to grant an
adoption.' B.W.C., 590 So. 2d at 283.
"The probate court kept exclusive jurisdiction
over the issue of whether or not to grant or deny
the petition to adopt. Wesson, supra. The probate
court, pursuant to the authority of § 26-10A-3, sent
the case to the juvenile court for the strictly
limited purpose of addressing the issue of
termination of parental rights, and the juvenile
court acquired only that limited jurisdiction over
this particular case. See Martin v. Martin, 173
Ala. 106, 55 So. 632 (1911), Ex parte Pearson, 241
Ala. 467, 3 So. 2d 5 (1941), and B.W.C., supra. The
juvenile court did not acquire jurisdiction over the
issue of whether to grant the petition to adopt, as
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that jurisdiction remained exclusively in the
probate court. See Wesson and B.W.C., supra.
"Therefore, in purporting to grant the petition
to adopt, the juvenile court exceeded its
jurisdiction and entered only a void judgment. See
State ex rel. Payne v. Empire Life Ins. Co. of
America, 351 So. 2d 538 (Ala. 1977), Ex parte
McKivett, 55 Ala. 236 (1876), and Knight v. Taylor
Real Estate & Ins. Co., 38 Ala. App. 295, 83 So. 2d
353 (1955). A related but independent analysis is
that, in exceeding the limited mandate of the
probate court, the juvenile court exceeded its
jurisdiction and entered only a void judgment. See
Ex parte Alabama Power Co., 431 So. 2d 151 (Ala.
1983), and Smith v. State, 852 So. 2d 185 (Ala.
Crim. App. 2001)."
Ex parte C.L.C., 897 So. 2d at 237-38.
In this case, no party to the adoption proceeding filed
a motion to transfer the case to the juvenile court,
therefore, § 12-12-35, Ala. Code 1975, the statute creating
the "transfer" mechanism referred to in the quote above, is
not applicable here. Pursuant to the authority of § 26-10A-3,
the probate court sent the case to the juvenile court strictly
for the limited purpose of addressing the issue of termination
of parental rights, and the probate court retained
jurisdiction over the adoption petition. Therefore, on the
authority of C.L.C., we conclude that the juvenile court did
not have jurisdiction to enter the judgment of adoption.
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Accordingly, that judgment is also void, and the cause is
remanded for the juvenile court to vacate the adoption
judgment as well.
APPEAL DISMISSED WITH INSTRUCTIONS TO JUVENILE COURT.
Pittman, Bryan, Thomas, and Moore, JJ., concur.