Opinion
CL-2022-0514
09-16-2022
B.J. v. Calhoun County Department of Human Resources
Appeal from Calhoun Juvenile Court (JU-20-806.01)
MOORE, JUDGE.
B.J. ("the mother") appeals from a judgment entered by the Calhoun Juvenile Court ("the juvenile court") on March 15, 2022, awarding custody of her child, C.J. ("the child"), whose date of birth is August 14, 2015, to M.J. ("the paternal aunt"). We dismiss the appeal as arising from a nonfinal judgment.
Procedural History
The pertinent procedural history of the case is as follows. On January 15, 2021, the Calhoun County Department of Human Resources ("DHR") filed a dependency petition relating to the child. On January 27, 2021, the juvenile court awarded DHR pendente lite custody of the child with the discretion to place the child in the physical custody of whomever it deemed appropriate and ordered DHR to use reasonable efforts to reunite the child with the mother and K.J. ("the father"). On that same date, DHR placed the child in the physical custody of the paternal aunt and her husband, J.J. ("the paternal uncle"). On April 15, 2021, the juvenile court adjudicated the child dependent, awarded custody of the child to DHR, ordered DHR to continue to use reasonable efforts to reunite the child with the mother and the father, and ordered DHR to develop a plan for the permanent disposition of the custody of the child. Part of the family-reunification plan called for the mother and the father to have supervised visitation with the child at regular intervals.
On October 4, 2021, the juvenile court determined that reasonable efforts to reunite the family had not succeeded, but would continue, and that the most appropriate permanency plan for the child was "relative custody." On December 7, 2021, DHR filed a "motion to transfer custody," requesting that the juvenile court award legal and physical custody of the child to the paternal aunt and the paternal uncle and that it "terminate the case." On December 6, 2021, the father filed a response to that motion in which he requested that the juvenile court award him custody of the child.
On March 11, 2022, the juvenile court presided over a trial of the case. Before the trial commenced, the father withdrew his claim for custody of the child and consented to DHR's motion to transfer custody of the child to the paternal aunt and the paternal uncle. During the trial, the paternal aunt testified that she wanted to maintain custody of the child but that she would abide by any order of the juvenile court awarding the mother and the father visitation with the child. The mother testified that she wanted more access to the child than she was being provided under the current supervised-visitation plan.
On March 15, 2022, the juvenile court entered an "Order of Modification of Dependency and Disposition Order," awarding legal and physical custody of the child to the paternal aunt. On March 16, 2022, the mother filed a notice of appeal of the March 15, 2022, order. On March 21, 2022, the child's guardian ad litem filed a motion requesting that the juvenile court correct the March 15, 2022, order to reflect that the custody of the child had been awarded to both the paternal aunt and the paternal uncle and to award the mother and the father visitation with the child. On April 7, 2022, the juvenile court entered an order purporting to grant the guardian ad litem's motion.
The mother's notice of appeal consisted of a handwritten note to the juvenile court indicating her intent to appeal the March 15, 2022, order. On March 24, 2021, the mother filed a second notice of appeal of the same order using the form adopted by our supreme court. See Ala. R. App. P., App. 1. The second notice of appeal, being in substance identical to the first, did not have any legal effect. See Alabama Psychiatric Servs., P.C. v. Lazenby, 292 So.3d 295, 299 (Ala. 2019) (dismissing second notice of appeal filed by the appellants as "redundant"); and Sheffield v. Stoudenmire, 553 So.2d 125, 127 (Ala. 1989) (same).
Finality
Generally speaking, "an order determining that a child is (or that a child remains) dependent coupled with a disposition of that child's custody is a final judgment capable of supporting an appeal." Marshall Cnty. Dep't of Hum. Res. v. J.V., 203 So.3d 1243, 1247 (Ala. Civ. App. 2016). In the April 15, 2021, order, the juvenile court determined that the child was dependent and awarded DHR custody of the child. Therefore, that order was a final, appealable judgment. However, that order did not resolve the dependency proceedings. The April 15, 2021, order specifically called for DHR to use reasonable efforts to reunite the family and to devise a plan for the permanent disposition of the custody of the child. See Ala. Code 1975, § 12-15-312. The order placed the custody of the child with DHR only as a "temporary protective measure to safeguard the child until either the parent[s] can safely resume custody or, reunification efforts having failed, some other permanent disposition of the child may be made." J.B. v. Cleburne Cnty. Dep't of Hum. Res., 992 So.2d 34, 48 (Ala. Civ. App. 2008) (Moore, J., dissenting).
In the December 7, 2021, motion to transfer custody, DHR maintained that family-reunification efforts had been exhausted and had failed, that the child remained dependent, and that the legal and physical custody of the child should be awarded to the paternal aunt and the paternal uncle. Thus, DHR did not file a petition to modify the April 15, 2021, order, as the juvenile court evidently characterized the motion; instead, DHR only invoked the continuing jurisdiction of the juvenile court to resolve the remaining issues in the ongoing dependency proceedings by making a permanent custodial disposition of the child. See J.B., 992 So.2d at 49 (Moore, J., dissenting) (noting that, in a similar posture, a juvenile court must determine: "(1) whether the child remains dependent, ... (2) whether reasonable efforts at reunification, if required, have failed or succeeded, ... and (3) whether it is in the best interests of the child to be returned to the custody of the parents [or to place permanent custody of the child elsewhere]").
The March 15, 2022, order adjudicated the motion filed by DHR by determining that the permanent custody of the child should be awarded to the paternal aunt. The March 15, 2022, order did not expressly address DHR's claim that the paternal uncle should also be awarded custody of the child. Furthermore, during the course of the March 11, 2022, trial, both the mother and the father asserted a right to visitation with the child. The paternal aunt agreed that she would follow any visitation plan that the juvenile court ordered, but, through their testimony, the parties contested whether that visitation should be supervised or unsupervised and whether the mother should have more time and access to the child than was being provided by the supervised-visitation plan that was in effect at that time. The March 15, 2022, order did not expressly address the visitation issue although that issue was before the court because it had been litigated by the parties. See Rule 15(b), Ala. R. Civ. P. ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings."); Rule 1(A), Ala. R. Juv. P. (making the rules of civil procedure generally applicable to juvenile proceedings).
Rule 58, Ala. R. Civ. P., provides that a judgment is sufficient if it indicates both an intention to adjudicate and the substance of the adjudication. In some cases, the omission of an express determination as to a claim implies that the court intended to deny the claim. See Horwitz v. Horwitz, 897 So.2d 337, 344 (Ala. Civ. App. 2004). However, this court does not assume in every case that, by failing to rule on a certain claim, a trial court intended to deny that claim. See Heaston v. Nabors, 889 So.2d 588, 590 (Ala. Civ. App. 2004). As required by Rule 58, this court analyzes the whole record of the underlying proceedings to ascertain the intent of the trial court when an express determination as to a claim is omitted from a judgment. See Faellaci v. Faellaci, 67 So.3d 923 (Ala. Civ. App. 2011); Spurlock v. McCollum, 836 So.2d 910 (Ala. Civ. App. 2002).
The record in this case shows that the juvenile court did not intend to adjudicate the custody claim of the paternal uncle or the visitation claims of the mother and the father when it omitted any express determination as to those claims in the March 15, 2022, order. On March 21, 2022, the guardian ad litem filed a motion pointing out the omission of any ruling on those claims and requested that the juvenile court "correct" the order. At the hearing on that motion, the juvenile court stated that it had failed to address both claims due to an oversight. The juvenile court attempted to rectify that mistake in the April 7, 2022, order by awarding the paternal uncle joint custody of the child and by establishing a visitation plan for the parents. Those actions clearly indicate that the juvenile court had not intended the omission of an express determination as to those claims from the March 15, 2022, order to be an implied adjudication of those claims, so that order was not a final judgment that would support an appeal. A final judgment is one that conclusively adjudicates all the issues litigated by the parties to the case. J.M.M. v. J.C., 50 So.3d 1076, 1077-78 (Ala. Civ. App. 2010).
The guardian ad litem cited Rule 60(a), Ala. R. Civ. P., as the legal ground for correcting the March 15, 2022, order; however, Rule 60(a) applies to correct clerical errors in only final judgments. See Weaver v. Weaver, 4 So.3d 1171 (Ala. Civ. App. 2008). In substance, the guardian ad litem's motion is more aptly characterized as a request for the juvenile court to adjudicate all the issues litigated by the parties so as to make its order final.
The juvenile court did purport to adjudicate all the claims of all the parties in the April 7, 2022, order. Unfortunately, however, the mother had filed her notice of appeal on March 16, 2022, 22 days earlier. The mother's notice of appeal divested the juvenile court of jurisdiction to act on the guardian ad litem's motion, and, therefore, its April 7, 2022, order purporting to grant that motion is a nullity. See R.H. v. J.H., 778 So.2d 839, 841-42 (Ala. Civ. App. 2000). Hence, the juvenile court never entered a valid final judgment regarding a permanent custodial disposition of the child.
We note that the juvenile court did not award the paternal aunt and the paternal uncle child support, although Ala. Code 1975, § 12-15-314(e), provides that "[w]hen a child is placed in the legal custody of ... any ... person pursuant to this section and when the parent ... has resources for child support, the juvenile court shall order child support ...." In light of our disposition of this appeal, we express no opinion as to whether that omission affected the finality of the judgment.
Rule 4(a)(5), Ala. R. App. P., which provides that a notice of appeal is held in abeyance pending the ruling on certain postjudgment motions, does not apply because the juvenile court had not entered a final judgment regarding the permanent custodial disposition of the child at the time the mother filed her notice of appeal and the guardian ad litem's motion to correct the March 15, 2022, order was not a postjudgment motion within the meaning of the rule. See note 2, supra.
In a dependency proceeding, an appeal will lie only from a final judgment. See Rule 28(A), Ala. R. Juv. P. (providing for appeals to an appellate court from "final orders or judgments" of the juvenile court when certain conditions are met); J.M.M., 50 So.3d at 1077. A nonfinal judgment will not support an appeal. R.H., 778 So.2d at 842. When a party appeals from a nonfinal judgment, this court does not acquire jurisdiction over the appeal and, thus, we must dismiss the appeal. 778 So.2d at 841-42. We, therefore, dismiss this appeal.
APPEAL DISMISSED.
Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.