Erw v. Mwm

36 So. 3d 61, 2009 Ala. Civ. App. LEXIS 439, 2009 WL 2343141
CourtCourt of Civil Appeals of Alabama
DecidedJuly 31, 2009
Docket2080431
StatusPublished

This text of 36 So. 3d 61 (Erw v. Mwm) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erw v. Mwm, 36 So. 3d 61, 2009 Ala. Civ. App. LEXIS 439, 2009 WL 2343141 (Ala. Ct. App. 2009).

Opinion

36 So.3d 61 (2009)

E.R.W.
v.
M.W.M.

2080431.

Court of Civil Appeals of Alabama.

July 31, 2009.
Rehearing Denied October 16, 2009.

*62 Jeffrey Bryan Pino of Jim Pino & Associates, P.C., Pelham, for appellant.

Mary Lee Abele, Birmingham, for appellee.

BRYAN, Judge.

The sole issue presented in this appeal is whether the Shelby Juvenile Court ("the juvenile court") properly exercised jurisdiction over the dependency petition filed by M.W.M. ("the paternal grandmother") pursuant to § 30-3B-101 et seq., Ala.Code 1975, Alabama's version of the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA").

On August 20, 2007, the paternal grandmother filed a petition alleging that R.E.W. ("the child"), the grandson of the paternal grandmother, was dependent and was "without a parent to provide for his support . . . ." The parents of the child, D.P. ("the mother") and E.R.W. ("the father"), are not married, and, at the time the dependency petition was filed, both parents lived in the state of Illinois. According to the paternal grandmother's dependency petition, the father "delivered the child" to the paternal grandmother on or about June 1, 2007. She further alleged that the father and the mother were financially unable to care for the child and that the mother had no permanent residence and was "physically ill."

According to the custody affidavit signed by the paternal grandmother, the child had been living with her in Shelby County from June 1, 2007, through August 20, 2007, the date she filed the dependency petition, or approximately two and one-half months. Before June 1, 2007, the child had lived in Illinois with either the father or both the father and the mother from 2001 through May 31, 2007, except for a four-month stay in Shelby County with the paternal grandmother from September 2006 through December 2006.[1] The paternal grandmother stated that she was unaware of any custody proceeding involving the child pending in Alabama or in any other state.

The juvenile court held a hearing on September 13, 2007; the mother and her attorney, but not the father, appeared.[2] On the date of the hearing, the mother tested positive for marijuana and admitted to taking Oxycodone without a prescription. The juvenile court entered a pendente lite order that stated that "[t]he release of the child would present a serious threat of substantial harm to the child." The pendente lite order further stated that the mother had agreed to the juvenile court's award of temporary custody of the child to the paternal grandmother, and the mother *63 was awarded visitation. The order also stated that "[t]he Court shall consult with the appropriate juvenile court in the State of Illinois to determine the appropriate jurisdiction for this matter."

The juvenile court held a second hearing on February 26, 2008; the father and his attorney, but not the mother, appeared. The father agreed that custody of the child should remain with the paternal grandmother, and the father was awarded visitation.[3] The father was ordered to finance and participate in random drug screens in Illinois.

On May 8, 2008, the father filed a motion to dismiss the paternal grandmother's dependency petition on the basis that the juvenile court did not have subject-matter jurisdiction over the proceedings pursuant to the UCCJEA. The father alleged that Illinois was the "home state" of the child and that, therefore, the juvenile court did not have jurisdiction to enter an order regarding an initial custody determination of the child.

The paternal grandmother filed an objection to the father's motion to dismiss, alleging that the juvenile court could properly exercise temporary emergency jurisdiction under the UCCJEA. The paternal grandmother alleged that the mother and the father had abandoned the child because, she said, after the father had sent the child on an airplane from Illinois to the paternal grandmother in Alabama, she had received no support from the mother or the father on behalf of the child. Further, the paternal grandmother alleged that the mother "had no income or assets[,] had moved to Colorado to `live with friends,' and was on welfare . . . ."

The paternal grandmother stated that the father had not visited with the child since February 26, 2008, had not supported the child, had not submitted evidence of random drug screens, and had not presented the juvenile court with a home evaluation as ordered. The paternal grandmother alleged that giving custody of the child to the father would pose a substantial danger to the child because the father had been charged, in May 2008, with felony possession of a controlled substance in Cook County, Illinois.[4] Finally, in further support of her assertion that the juvenile court could properly exercise temporary emergency jurisdiction, the paternal grandmother averred that the father had a long history of drug abuse, "including intravenously inject[ing] Oxycontin, cocaine, marijuana, alcohol and Vicodin." The paternal grandmother attached exhibits to substantiate her allegations of the father's arrest and drug abuse, including the father's hospital records and court records from Cook County, Illinois.

On June 3, 2008, the juvenile court entered an order that stated, in pertinent part:

"2. That the minor child was present in the State of Alabama, Shelby County on the date the [dependency] petition was filed and was therefore subject to the emergency jurisdiction of this Court.
"3. That, pursuant to the [UCCJEA], the proper state of jurisdiction for this matter would be the `home state' of the minor child[;] . . . the `home state' of the minor child is the state where the minor child resided for six (6) months next preceding the filing of the complaint.
"4. As the home state of this child is the state of Illinois, pursuant to the *64 [UCCJEA], the state of Illinois is the proper place of jurisdiction of this matter. The Court notes that, upon consideration of the Custody Affidavit filed by the [paternal grandmother], said child last resided in the state of Illinois for 6 months next preceding the filing of the petition herein.
"5. Pursuant to the provisions of the [UCCJEA] this Court would have jurisdiction over this child to enter an Order for the protection and welfare of the minor child pending Order of the home state. Therefore, it is the Order of this Court, having considered the argument and pleadings herein, that the minor child shall remain in the custody of [the paternal grandmother], pending further Order of this Court or a SUBSEQUENT Order of the appropriate Court in the state of Illinois.
"6. Pursuant to the [UCCJEA], this Court hereby notifies the Court of the home state that this Court is willing to exercise jurisdiction of this child in the event that the home state of the child chooses to relinquish jurisdiction pursuant to the provisions of the [UCCJEA]."

(Capitalization in original.)

On September 23, 2008, the juvenile court conducted a telephone conference with a judge from the circuit court of Cook County, Illinois ("the Illinois court"). The Illinois court entered an order relinquishing jurisdiction of the father's custody petition "to the State of Alabama."[5] The order stated that all parties and their attorneys were present for the telephone conference, either in Alabama or in Illinois.

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Cite This Page — Counsel Stack

Bluebook (online)
36 So. 3d 61, 2009 Ala. Civ. App. LEXIS 439, 2009 WL 2343141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erw-v-mwm-alacivapp-2009.