Opinion
2200135
02-26-2021
D.S.W. v. R.D. and S.W.
Tim W. Milam, Tuscumbia, for appellant. Submitted on appellant's brief only.
Tim W. Milam, Tuscumbia, for appellant.
Submitted on appellant's brief only.
THOMPSON, Presiding Judge. D.S.W. ("the father"), the father of A.D. ("the child"), appeals the judgment of the Cullman Juvenile Court ("the juvenile court") dismissing his motion styled as a "renewed motion to intervene and renewed motion to set aside temporary custody order." We remand with instructions.
On January 26, 2018, R.D., the child's maternal great-grandfather, and S.W., R.D.'s girlfriend, filed a verified petition in the juvenile court alleging that the child was dependent and in need of care and supervision because, among other things, the child's mother was abusing drugs, was not providing for the child's medical needs, was allowing the child to engage in inappropriate behavior, and had been living with them for the past year and a half. The petition identified the child's mother; the petition was marked "N/A" where the father's name was to be provided. That same day, after reviewing the sworn statements and evidence presented by the parties and considering the recommendation of the guardian ad litem appointed to represent the child, the juvenile court entered a pendente lite order determining the child is dependent and placing the child in the care, custody, and control of R.D. and S.W. In a subsequent order, issued the same day, the juvenile court stated that it had awarded custody of the child to R.D. and S.W. "by agreement of the parties."
On April 19, 2018, the juvenile court conducted a final hearing. No transcript of that hearing or any other hearing appears in the record on appeal.
On May 8, 2018, the juvenile court entered a final judgment awarding R.D. and S.W. legal and physical custody of the child and awarding the mother "reasonable supervised visitation." The juvenile court further ordered that it would retain jurisdiction to enter any further orders necessary for the care, welfare, and supervision of the child. See D.P. v. Limestone Cnty. Dep't of Hum. Res., 28 So. 3d 759, 762 (Ala. Civ. App. 2009) (recognizing that, although a juvenile court may retain jurisdiction to modify its order upon a showing of changed circumstance, a juvenile court's orders in a dependency case are final and appealable judgments).
It appears that in early October 2020, approximately 29 months after the dependency judgment awarding custody to R.D. and S.W. had been entered, the father filed a motion to intervene and to set aside the custody award. A copy of that motion is not included in the record. However, the juvenile court's order denying the motion is in the record and states:
"This case was heard in May 2018, when temporary custody was granted to [R.D. and S.W.]. A review of the case action summary does not reveal a father listed on the [dependency] petition and the person who claims to be the father has not provided any information that would allow the court to grant the motion to intervene at this time."
On October 22, 2020, the father filed a motion styled as a "renewed motion to intervene and renewed motion to set aside temporary custody order." In his renewed motion, the father stated that he was the child's father, as evidenced by a DNA report attached to the renewed motion concluding that the probability of his paternity of the child is 99.99997%. The father alleged, among other things, that, while the 2018 dependency proceeding was pending, R.D. was aware of the father's address and telephone numbers and had intentionally defrauded the court by failing to notify him of the dependency action. The father asked the juvenile court to set aside the dependency judgment awarding custody of the child to R.D. and S.W. and to award custody of the child to him.
The DNA report had been filed in the Chancery Court of Itawamba County, Mississippi. The record does not reflect the type of judicial proceeding in Mississippi in which the report had been filed.
On October 23, 2020, the juvenile court granted the father's motion to intervene, appointed the same guardian ad litem, who had served in the 2018 dependency proceeding, and ordered the father's motion as to custody to be heard on the next available docket.
On November 3, 2020, R.D. filed a motion to dismiss the father's renewed motion. In his motion, R.D. alleged, among other things, that the juvenile court lacked jurisdiction to consider the father's renewed motion because, he argued, the dependency judgment awarding custody of the child to him and S.W. was final and no appeal had been taken from that judgment, the Cullman Probate Court now has jurisdiction over the child because he and S.W. had filed a petition to adopt the child and to terminate the parents’ parental rights that was pending in that court, and the father knew where the child had been living the past few years but had no contact with the child.
On November 4, 2020, the juvenile court, without conducting a hearing or setting forth its reasons, dismissed the father's renewed motion. The father appeals.
In his brief to this Court, the father contends that the juvenile court erred in dismissing his renewed motion because, he says, the dependency judgment awarding custody of the child to R.D. and S.W. was entered without having perfected service on him. In essence, his motion is a motion for a modification, pursuant to what was, at all times relevant to this case, Rule 13(A)(5), Ala. R. Juv. P. See Limestone Cnty. Dep't of Hum. Res. v. Long, 182 So. 3d 541, 544 (Ala. Civ. App. 2014) (holding that "[w]hen a party asserts that a juvenile court erred by not joining it as a party to a juvenile proceeding, that party must follow the procedure established in Rule 13 [(A)](5), Ala. R. Juv. P., in order to obtain relief from an order of the juvenile court"); M.R. v. C.A., 273 So. 3d 846 (Ala. Civ. App. 2018). Although the father did not cite Rule 13(A)(5) in his renewed motion, we conclude that Rule 13(A)(5) controls. See T.L. v. W.C.L., 203 So. 3d 66, 71 (Ala. Civ. App. 2016) (" ‘Our caselaw is clear ... that it is the substance of a motion, not its nomenclature, that is controlling; "the relief sought in a motion determines how to treat the motion." ’ " (quoting Campton v. Miller, 19 So. 3d 245, 249 (Ala. Civ. App. 2009), quoting in turn Allied Prods. Corp v. Thomas, 954 So. 2d 588, 589 n. 3 (Ala. Civ. App. 2006) )).
Rule 13, Ala. R. Juv. P., was amended, effective February 1, 2021. As a result of that amendment, Rule 13(A)(5) has been renumbered as Rule 13(A)(6).
Rule 13(A)(5) provided:
"A party not served under this rule may, for good cause shown, petition the juvenile court in writing for a modification of any order or judgment of the juvenile court. The juvenile court may dismiss this petition if, after a preliminary investigation, the juvenile court finds that the petition is without substance. If the juvenile court finds that the petition should be reviewed, the juvenile court may conduct a hearing upon the issues raised by the petition and may make any orders authorized by law relative to the issues as it deems proper."
Although a juvenile court is not required to conduct a hearing on a Rule 13(A)(5) motion before ruling on the motion, especially when the motion on its face is "without substance," the juvenile court's failure to conduct a hearing and/or to provide findings of fact when a movant alleges facts or circumstances in his or her motion that, if proven true, would support providing relief under Rule 13(A)(5) may be an abuse of discretion. Cf. Snooky Hairrell Volkswagen, Inc. v. Speer, 689 So. 2d 51 (Ala. 1997) (holding that if a movant makes factual allegations in support of his or her Rule 60(b), Ala. R. Civ. P., motion that, if proven true would entitle him or her to relief, the trial court should hold a hearing and allow the movant an opportunity to present evidence in support of his or her claim), and Waldron v Fikes, 378 So. 2d 1138, 1139 (Ala. Civ. App. 1979).
Here, although the father did not cite Rule 13(A)(5), he did request that the juvenile court modify the dependency judgment awarding custody to R.D. and S.W. because he had not been notified of the dependency proceeding; therefore, in essence, the father has followed the procedure established in Rule 13(A)(5). The father's assertion that he was not served with notice of the dependency proceeding, combined with the juvenile court's finding that R.D. and S.W. did not identify a father in the dependency petition, constitutes, on its face, good cause for the father's request that the juvenile court modify the dependency judgment. The juvenile court's judgment dismissing the father's renewed motion does not provide any reasoning for the dismissal, and we cannot discern from the sparse record before us a reason supporting a finding that the father's renewed motion is "without substance." See T.L., 203 So. 3d at 72. Therefore, we cannot determine whether the juvenile court exceeded its discretion in denying the father's Rule 13(A)(5) motion.
Accordingly, we remand this cause. In accordance with this opinion, the juvenile court is instructed to consider the father's renewed motion as a Rule 13(A)(5) motion and, if necessary, to hold an evidentiary hearing on this matter. On remand, the juvenile court may conduct such further proceedings or take such evidence as it deems necessary to make its determination as to whether the father is entitled to relief and to provide specific findings of fact supporting its determination. A return to remand shall be filed with this court within 28 days of the date of this opinion. The return to remand shall include the juvenile court's findings of fact.
REMANDED WITH INSTRUCTIONS.
Moore, Edwards, Hanson, and Fridy, JJ., concur.
On Return to Remand
THOMPSON, Presiding Judge.
Pursuant to this court's opinion of February 26, 2021, remanding the case, the Cullman Juvenile Court, in compliance with Rule 13(A)(5), Ala. R. Juv. P., conducted a hearing at which D.S.W., the father of A.D. ("the child"), R.D., the child's maternal great-grandfather, and S.W., R.D.'s girlfriend, were present. The juvenile court held, in accord with an agreement among the parties included in the supplemental record, that the father, R.D., and S.W. shall share joint legal custody of the child and that R.D. and S.W. shall have sole, physical care, custody, and control of the child. Therefore, the judgment of the juvenile court is affirmed.
AFFIRMED.
Moore, Edwards, Hanson, and Fridy, JJ., concur.